Director of Public Prosecutions v Archibald and McMahon
[2012] VCC 2174
•30 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01888
CR-11-01889
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRAEDON ARCHIBALD SCOTT McMAHON |
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JUDGE: | His Honour Judge Gucciardo | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 30 November 2012 | |
CASE MAY BE CITED AS: | DPP v. Archibald and McMahon | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2174 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr W.F. Dwyer | |
| For the Accused Archibald For the Accused McMahon | Mr J. Valos Mr J.K. Oldis |
HIS HONOUR:
1 Braedon Archibald and Scott McMahon, you have pleaded guilty to a number of charges in relation to a drug dependence and to a number related to dishonesty offences.
2 I will deal with each of the charges and circumstances of the offences and your circumstances in a way hopefully which will highlight each of those matters separately and common matters and come to the sentences at the end.
3 You, Braedon Archibald, pleaded guilty to four charges of obtaining financial advantage by deception which spanned from January 2007 to 31 December 2010. During these four years it was alleged you dishonestly obtained for others a financial advantage by enabling various persons to evade the debt and the consequent loss of demerit points arising out of traffic infringements, received by those various others, by creating and submitting false nomination statements; false by virtue of false names created by you. These are rolled‑up charges reflecting your conduct in the periods in each charge. The fictitious identities used as false nominees were used on some 157 occasions. In addition to these, false nominations were used for yourself, your mother and other family members for you, McMahon, and neighbours.
4 Between October 2009 and October 2010 you used the false identification information to create a Commonwealth Bank and a National Bank account and other identities with VicRoads and Birth Registry. These false documents included driver's licences and birth certificates. This is rolled-up Charge 5.
5 You were found in possession of various false identification information and this is referred to in Charge 6, a rolled-up count in relation to various such information which were intended to facilitate the commission of indictable offences.
6 Your drug-related activities came to the notice of police in June and July 2010. You purchased precursor chemicals to the manufacture of methylamphetamine with Mr McMahon.
7 You, Archibald, have been charged with attempting to traffic in a drug of dependence, Charge 7. This attempt is founded on what was found at your premises when search warrants were executed. A clandestine laboratory was set up with all necessary accoutrements and documentation including glassware, plastic containers, hoses, heating apparatus, extraction vessels, chemicals, gloves and the other items which were found.
8 Articles on your laptop showed material and information on the manufacturing of crystal methamphetamine. Your fingerprint was on the equipment. A forensic scientist conducted a chemical analysis of the seized material and determined that you had undertaken to manufacture substances designed to produce ephedrine; the chemical required to bring about the final step in the production of methylamphetamine. It was present but the process had failed a particular chemical part which required different chemical proportions and though the first two steps in the process had taken place successfully the ultimate expected product did not. In the scientist's view you would have produced in the order of 50 to 60 grams had your last step succeeded.
9 Also in your possession were testosterone, a drug of dependence, Charge 8 and thallium, a poison, Charge 9; both rolled-up charges.
10 You also pleaded guilty to three summary charges which related to weapons involved, two were prohibited weapons; an extendable baton and a taser. The third was a controlled weapon; a knife.
11 You, Scott McMahon, pleaded guilty to one charge, Count 1, of obtaining financial advantage for yourself by deception. This involved false nomination statements to evade a debt and loss of demerit points. This was done six times between August 2008 and July 2009 and is reflected in a rolled-up Charge 1.
12 In 2009 you made a false document intending to use that to induce a bank to accept it as genuine. Together with Archibald you fraudulently used identification information in an attempt to obtain property by deception, an indictable offence, by applying for a National Australia Bank bank loan using a false name, Charge 3; applying for a National Australia Bank credit card, Charge 4; and applying for a National Australia Bank credit card, Charge 5, both under false names.
13 On 25 October 2010 you were found in possession of identification information in various names, such information intended to facilitate the commission of an indictable offence. Located in your bedroom were a large number of fraudulently made documents, licences, certificates, accounts, statements, in the name and format of documents recovered from Archibald's premises.
14 In relation to drugs you, McMahon, have pleaded guilty to an attempt to traffic in a drug of dependence, namely methylamphetamine, between July 2010 and October 2010 on the same basis as described in the summary of offences for Archibald, that is the creation and the set up of a lab with efforts made to manufacture.
15 At your home were recovered articles relating to this endeavour including various equipment, items, documents outlining the process in relation to methylamphetamines and drugs generally. Your fingerprints were also located on the equipment.
16 The dishonesty offences are serious in both of your cases and my comments apply to both. The gravity is not only highlighted by the maximums applicable in each case but your commission of these offences, in Archibald's case, spans four years and three in the case of McMahon.
17 This is sustained cheating and dishonesty for an extended period. A well practised deception which undermines the regulation and sanctioning process related to the road and endangers not just the revenue of the state, but perhaps more importantly the licence, status and punishment regime for drivers which in turn effects the state’s capacity to deter poor driving and ultimately ensure safe systems of traffic on our roads.
18 Although the level of sophistication may not be high nevertheless the creation of false identities and fraudulent documents and the possession of false identification information when coupled with real attempts either to obtain financial advantage or to commit the offence of obtaining property by deception amounts to culpability not at the low end of the range, but somewhere in the middle ranks of blameworthiness.
19 In my view these dishonesty offences must be denounced as unacceptable behaviour and punished appropriately. General deterrence must be of primary importance therefore in the sentence; an element which pertains to each of them. This is particularly in the case of you, Archibald. You have a short, prior criminal history for dishonesty. A relevant prior in 2008 when you were 20 for making and using a false document to prejudice another which related to false numberplates. You, McMahon, have no prior criminal history. I take the absence of priors in account in your favour.
20 Your history, Archibald, is relatively short and relevant only as I have outlined. It contains no serious crime, particularly none related to drugs which is of importance in assessing your prospects for rehabilitation.
21 As to the drug offences and attempt to traffic a drug of dependence by way of manufacturing, even as an attempt which ultimately failed, must be considered very serious. The setting up of a lab to make methylamphetamine is a serious criminal enterprise which requires planning, the expenditure of resources, purposeful clandestinity and single minded criminal purpose. It must too be denounced and punished.
22 Drugs have in fact blighted your own lives and is the bane of young people and their families and the community. Had you been successful in the manufacture I have no doubt you would have used parts of the product yourself and sold the rest. The potentiality is part of the attempt, but it also in a sense is its limitation, it attaches to it by its nature being an inchoate offence.
23 Nevertheless general deterrence must be paramount and specific deterrence looms large because of your own personal histories. The sentence must act to deter like-minded others and impact upon you in a way which makes clear and it will help you to determine to turn way from it in the future.
24 Scott McMahon, you are 30 years of age. I heard evidence from your mother who described your childhood difficulties with hyperactivity, isolation and health related disadvantages. Apart from dyslexia you were diagnosed with ADHD at a young age. You were prescribed Ritalin and the drug affected your personality turning you inwards and you achieved some academic success on the one hand, but created social difficulties that appeared quite substantial. It appears that a break in the therapeutic relation with your paediatrician when you became older meant an effective loss of a guiding, medical help.
25 Though you qualified academically in the finance field and had work, your search for a stable psychiatric treatment through a practitioner proved elusive, this effected your medication regime. Your behaviour changed, you became depressed and angry and failed to fit into a social scene even less than before.
26 You did make friends with Archibald, but at the beginning of the offending period this relationship found you using amphetamines. You have expressed remorse for these actions to your mother. You have lived at home most of your life. Your work history has become rather poor because of your state, continuity is difficult.
27 You are mainly at home and you assist with the family. I accept that your drug offending was to a large extent motivated by needing to substitute and have available to you a drug which would adequately substitute Ritalin on which you so successfully relied on for a long period of years.
28 I have read and considered letters from Dr Hughs, your paediatrician, and Mr McCrone of the Department of Health which attest and confirm the history given in relation to the impact of stimulant medication; both positive and negative. I have also taken into account the series of urine drug screens tendered which are negative.
29 I also read and take into account the report of Mr Patrick Newton, an experienced psychologist. He reports that you are vulnerable, excitable and easily distracted indicating significant emotional volatility and behavioural disturbance. This is confirmed by your mother and the medication history. Though in the past it has improved your capacity to learn it could not help you with improving your social skills and you have remained ostracised from peers and this sense of being outcast has contributed to your lack of meaningful relationships as well.
30 In such a situation I accept that you were increasing self-medication to duplicate the effect of the drug which had had such an effect , and is a primary consideration, both in relation to some of the aspects of obtaining finance by reliance on false documents, as well as the botched manufacturing attempt. Your ADHD symptoms persist and Mr Newton concludes that you may have Aspergers or autism or a personality disorder with schizotypal and/or borderline features.
31 You have had considerable suicide ideation however you have embarked on a significant abstinent lifestyle since being released, but it is clear that your journey forward is only beginning and is fraught with difficulties.
32 Drug counselling and mental health treatment will be required. I agree that structured intervention in the context of ongoing supervision allowing for best prospects of rehabilitation must be a real option for the court. These prospects must be guarded, they are by no means forlorn.
33 In my view your case is one in which the interests of the community are best protected in the long term by ensuring that while in a supervised structure your prospects for rehabilitation are supported and encouraged. This alternative can achieve worthy aims of punishment adequate to your offending by way of community work which appears as retribution particularly for the dishonesty offences, but which in particular can engage programs providing the sort of environment in which your mental health is properly addressed.
34 Your parents were in court and you obviously have their support and that is a significant benefit to you.
35 I accept that your moral culpability is lessened by your circumstances and this means that a general deterrence emphasis is misplaced in your case. I also agree that specific deterrence concerns will be met adequately by a structured effort at rehabilitation.
36 I accept that your plea is valuable and accompanied by remorse and in this context I take it into account by way of a discount on your sentence.
37 Community Corrections assessed you as suitable for a Community Corrections Order and I intend upon your indictment to convict you and place you on an order for 12 months. I will order that you perform 200 hours of community work and there will be treatment and rehabilitation conditions including medical and mental health assessment and treatment. You have had your obligations explained to you and you understand what would happen should you fail to comply with those obligations.
38 I order that you undergo a forensic procedure for the placement of a biological sample on the DNA database as I am satisfied the order is in the public interest and is not opposed. I have signed disposal orders and the 464ZF orders in your situation. But for your plea I would have sentenced you to four years imprisonment with a nonparole period of two years.
39 Braedon Archibald, you are 24-years-old and therefore you committed the offences when 19 in relation to the start of the dishonesty offences through to 22 years of age for the attempt to traffic.
40 Your plea is also relevant and to be taken into account in your favour as your admissions as to the fraud.
41 The delay in concluding these matters has given you an opportunity to engage in rehabilitative efforts but much of your reclamation has not been achieved by the agency of punishment, rather by a most serious and unfortunate circumstance related to your mother's health.
42 It is no doubt little consolation for her own suffering, but the suffering which has marred her life of late has achieved some sort of redemptive quality for you, her son, and in that she might find some consolation and encouragement. Her cost, personal and significant, has given you the chance to redeem yourself. It would be shameful on your part if you were not to honour her suffering by breaching the order that I have decided to make in your case.
43 Your situation and hers, in particular, make for a merciful disposition in acceptance of the exceptional circumstances which exist in this case arising out of her condition. From your own perspective you have made efforts to remain drug free for some months; 17 months in fact or so. You have looked after her as her only son and showed increased maturity of late.
44 Your parents separated when you were an infant due to your father's difficulty with alcohol. You have also from time to time offered and been given the burden of supporting your father, though very young, and these marked your early years.
45 I have read all the material tendered on your behalf including medical reports and records which describe your own battle with behavioural problems; Ritalin for ADHD. I have read Debbie Hocking's psychological report of 2010 in which your history of anabolic steroid use and amphetamine dependence is described.
46 Mr Jeffrey Cummins, a very experienced psychologist, gave helpful evidence and prepared a report dated November 2012. He opines your mental health would deteriorate in a custodial setting and make reclusion more onerous on you.
47 Though I have considered the option of imprisonment in your case in my view you do not represent so differently than your cooffender McMahon. Not for this evaluation are you entitled to the same treatment, but the relevant rehabilitative considerations which prevail in your case are similar to his.
48 I accept that you are now focused on your family life and have accepted your measure of responsibility and care for your mother at this difficult time. You have completed your apprenticeship and I hope the court’s mercy encourages you to continue on this course which, in my view, lessens special deterrent considerations as well as general deterrence requirements.
49 You were assessed as suitable for a Community Corrections Order and I intend to impose such an order. The community work component of 200 hours and the supervision component in your case, particularly in view of the care obligations that you have, will mean that you will need to be very careful with those obligations in attending as to appointments and as to work as well as the need to provide support to your mother, but that is the nature of the punishment and deterrent aspect of this order.
50 Upon each of the charges on your Indictment I will order that you be convicted and released upon entering into a Community Corrections Order for 12 months. I order that the order include conditions as to assessment, treatment and rehabilitation for drug and alcohol supervision, assessment and treatment for medical and mental health, as well as offending behaviour specific to you pursuant to the recommendations of the corrections officer.
51 But for your plea of guilty I would have sentenced you to four and a half years with a nonparole period of two and a half years.
52 As to the three summary charges you are convicted and fined $100 on each making a total of $300. I will order a stay of three months.
53 I order that you too provide a biological sample pursuant to s.464ZF of the Crimes Act. In both of your cases that will be a scraping from the mouth so that a sufficient standard is obtained and placed on the database. I do so because I consider the granting of the order is in the public interest and not opposed.
54 I should say to both of you that at the time a police officer makes a request for that sample from you if you do not consent at that time an authorised member of the police force then will take a blood sample and may use reasonable force to enable that procedure to be conducted. Do you understand?
55 PRISONERS: (No audible response.)
56 HIS HONOUR: I have signed disposal orders in relation to each of you, I will hand them down. Mr McMahon, you have an appointment to report to the Broadmeadows Community Correctional Services before 4 p.m. by 4 December.
57 I should make absolutely clear that if you breach the obligations imposed upon this order you will be brought back before me on that breach and I will deal with you then and I think the prospects of you avoiding imprisonment will be quite few. Do you understand?
58 PRISONER McMAHON: Yes.
59 HIS HONOUR: Mr Archibald, you will also report to Broadmeadows by 4 December. Your program is a bit more onerous than that of Mr McMahon but similar. I know that you have personal responsibilities in this period, but I stress again, and I am sure your counsel will reiterate it to you, these are not easy options that you have just received from me. They require you to attend appointments, to attend community work and to abide by supervision. If you breach that order, as I have said in my sentence, it would be shameful in relation to what is happening in your family, but it will bring you back before me and I will deal with you then. Do you understand?
60 PRISONER ARCHIBALD: I do.
61 HIS HONOUR: I think you should both consider that this is just about the best chance anyone has ever given you in your life. I think if you have half a brain in your head, and I think you both do, you will take the opportunity. If you do not another court in the future I can assure you both will oblige you by sending you back out through that door rather than through that one. Do you understand?
62 PRISONER ARCHIBALD: I do.
63 HIS HONOUR: Do you understand, Mr McMahon?
64 PRISONER McMAHON: I understand, yes, I do.
65 HIS HONOUR: Good. I think both of you can be very grateful to your families for being here. Take a seat, when the orders are printed out I will sign them and you will counter sign them. You can both come out of the Dock and you can sign these documents. Thank you.
66 You will get copies of these documents, so that you can be reminded of the details of them and not lose sight of them.
67 Are there any other orders that I need to make, Mr Dwyer?
68 MR DWYER: No, Your Honour.
69 HIS HONOUR: Thank you, gentlemen. When copies are made, made available to Mr Archibald and Mr McMahon you can be excused. Thank you.
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