Director of Public Prosecutions v Cathcart
[2020] VCC 1818
•18 November 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 20-01206
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GLEN MATTHEW CATHCART |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 November 2020 |
| DATE OF SENTENCE: | 18 November 2020 |
| CASE MAY BE CITED AS: | DPP v Cathcart |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1818 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW – Sentence
Catchwords: Aggravated burglary – burglary - carjacking – theft – drug fuelled offending in a four hour crime spree.
Legislation Cited: Criminal Procedure Act 2009; s. 145
Cases Cited: R v Verdins (2007) 169 A Crim R 581
Sentence:Total effective sentence of five years and four months’ imprisonment with a non-parole period of three years and four month’s imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Paganis | Director of Public Prosecution |
| For the Accused | Mr A. Patton (To Plead) Mr T. Magazis (Sentence) | Theo Magazis & Associates |
HIS HONOUR:
1Glen Matthew Cathcart, on 12 November 2020 at the County Court at Melbourne you pleaded guilty to the following charges in indictment number K12408853:
Charge 1, was attempted carjacking. This charge has a maximum penalty of ten years' imprisonment.
Charge 2, theft of a motorcar. This charge has a maximum penalty of ten years' imprisonment.
Charge 3, common law assault. This charge has a maximum penalty of five years' imprisonment.
Charge 4, carjacking, this charge has a maximum penalty of 15 years' imprisonment.
Charge 5, burglary, this charge has a maximum penalty of ten years' imprisonment.
Charge 6, common law assault. This charge has a maximum penalty of five years' imprisonment.
Charge 7, theft of a mobile phone. This charge has a maximum penalty of ten years' imprisonment.
Charge 8, aggravated burglary of Skyline Road, Yarra Glen, this charge has a maximum penalty of 25 years' imprisonment.
Charge 9, theft of a mobile phone. This charge has a maximum penalty of ten years' imprisonment.
Charge 10, theft of a motorcar. This charge has a maximum penalty of ten years' imprisonment.
2You consented to a related summary charge pursuant to section 145 of the Criminal Procedure Act of unlicensed driving being heard in this court. You pleaded guilty to that charge and that charge has a maximum penalty of six months' imprisonment.
3These proceedings are being conducted by way of video link between the prison where you are, and the court and the barristers and solicitors are all on WebEx platform. That is due to the restrictions imposed by the Victorian government in the COVID-19 pandemic time.
Your circumstances of your offending
4The prosecutor read from and tendered a summary of prosecution opening dated 15 October 2020. It was Exhibit “A” on the plea.
5Mr Cathcart, in a four hour period on 14 September 2019, your crime spree from Tarneit Gardens Shopping Centre to the quietude of Skyline Road, Yarra Glen, directly impacted on the lives of no less than ten people who were going about their lives in a lawful and peaceful manner.
6Your criminal behaviour was frightening and confronting to each of them. I will summarise your offending to set out the context for your sentence.
Charge 1: attempted carjacking
7At 6.30 am on 14 September 2019, you were walking through the car park at Tarneit Gardens Shopping Centre. You saw Mr Sandhu seated in his Mitsubishi Lancer. You engaged with him in conversation and then reached into the car to take the keys out of his ignition.
8You demanded Mr Sandhu give you his car. Mr Sandhu confronted you and snatched the garage remote back from you but was unable to get his keys from you. You ran off after throwing a soft drink bottle at the car in which he was seated.
Charge 2: theft of a motor vehicle
9At approximately 7 am you saw Mr Pong get out of his vehicle which was a Toyota Hilux utility at his residential address in Carbine Avenue, Tarneit. The vehicle was parked in Mr Pong's garage with the door open. He was about to leave to go to work. Mr Pong had left the keys in the vehicle with the engine running and had returned inside his home to turn off a fan.
10Upon observing this you have approached the vehicle and sat in the driver's seat. Mr Pong has then returned to the garage and shouted at you to stop. You drove out of the garage and away in his vehicle which was valued at approximately $30,000.
Charge 3: common law assault of Ms Grant
11You had driven Mr Pong's stolen Toyota Hilux approximately 70 kilometres to rural St Andrews. At 8 am you parked the vehicle at the front of Ms Grant's home. You said to Ms Grant, 'Give me your fucking keys to your fucking car'.
12You then proceeded to walk to the top of the stairs at the front of the house. However, she had latched the gate at the top of the landing to stop you from getting any further. You then again said, 'Give me your fucking keys to your car. If you don't give me your keys, I'll fucking kill you or fucking kill myself'.
13In fear Ms Grant screamed out to her husband for help and you retreated, returning to the stolen vehicle, that is Mr Pong's stolen vehicle, where you drove away towards Skyline Road.
Charge 4: carjacking
14The victims in this charge are Ms Read and
Ms Young. You travelled from Ms Grant's home down Skyline Road, Yarra Glen, to another property where Ms Read and Ms Young and their two dogs were in their Toyota RAV4. You stopped the stolen Hilux and left the engine running and approached Ms Young and said, 'Get out of the car'. After some negotiation, that is the way I describe it, about getting dogs out of the RAV4 vehicle you were given the keys to it by Ms Young.15You were unable to start the RAV4 due to an electronic mechanism which was fitted to the vehicle. You then demanded the keys to a Subaru Forrester from Ms Read. Ms Read gave you the keys and you drove away up Skyline Road in that Subaru.
Charge 5: burglary
16The victim in this case is Ms Benson. You travelled in the stolen Subaru to a property on Skyline Road, Yarra Glen. At that property you located some gardening tools in the front yard and used them to smash a window into Ms Benson's house. You demanded her car keys, Ms Benson ran into her bedroom, rang the police and then escaped her house to seek refuge at the Hammersley house which was next door to hers. Ms Benson observed you trying to get her Lexus motor vehicle started.
Charge 6 and 7: common law assault and theft of a mobile phone and the victim in this case is Ms Smith
17Ms Smith observed you sitting in the stolen Subaru whilst you were parked at the Benson's driveway. Ms Smith thought that you were Mr Benson sitting in the front of the Subaru vehicle.
18You shouted at Ms Smith in an aggressive manner, 'Get your car'. You kept demanding Ms Smith give you her car. You approached her with the knife you had found and ultimately Ms Smith gave you her phone.
19She tried to escape you by going to Hammersley's house. You followed her there. Ms Smith then ran to her own home and rang the police. You initially followed her to her own home but left without any further incident.
Charge 8 and 9: charges of aggravated burglary and theft of a mobile phone and the victims in this case are Mr and Mrs McGowan
20You left Ms Smith's property and walked back to the property on Skyline Road in Yarra Glen.
21This property is the home of Mr and Mrs McGowan. They were in their home watching morning television when you entered their home and confronted them. You demanded their car keys and held up the gardening tools in a threatening manner.
22You took Ms McGowan's phone from her handbag after it had fallen out of the couch. Mr McGowan ran out of the house to retrieve the car keys from the family car. Ms McGowan retreated to the kitchen. You followed her and grabbed at her dressing gown pocket in search for the car keys.
23Ms McGowan was in fear for her life. You went out to Mr McGowan and demanded the car keys from him. Mr McGowan slammed the gate closed and ran down the road. You chased him for a short distance and then gave up.
Charge 10 and related summary offence: theft of a motor car of Mr Benson and unlicensed driving
24You returned to the Benson property and you still had the keys to Mr Benson's Lexus. You drove off into Skyline Road in a southerly direction, but Mr McGowan blocked your path with his car.
25You then did a U turn and drove the Lexus north along Skyline Road, Yarra Glen and continued up a track until it became bogged. Mr Benson's vehicle was considerably damaged. After you abandoned the car you were using
Ms Smith's stolen mobile phone and you made several telephone calls to 000.26Using the information from those phone calls the police Airwing control were able to locate you in remote bushland. The police utilised the Critical Incident Response Team and the Dog Squad to effect a safe arrest of you.
27When you were located, you were wearing the same clothes as you had worn when captured on the CCTV at the Hammersley property and photographed at the Benson property. You were also in possession of Ms Smith's phone,
Mr Benson's garage remote and Mr Pong's Commonwealth Bank cards.28Police also located the small red handled axe and the yellow builder's knife which I referred to as “the garden tools” which were found at the property of Skyline Road, Yarra Glen.
29You were conveyed to the Lilydale police station where a record of interview was conducted. You exercised your right to make a no comment record of interview.
30In this case there were three committal case conferences prior to the listed committal date of 1 June 2020, but charges were settled prior to any witness being cross-examined and this matter proceeded as a straight hand up brief. It is not an early plea of guilty but a plea of guilty that has avoided any of your victims having to relive their experience by giving evidence and being cross-examined in the court.
Victim Impact Statements
31I am now going to address the victim impact statements. In total there were ten direct victims of your offending in this short period of time which encompassed your criminal conduct.
32Three of your victims had filed victim impact statements.
33Exhibit “C” was the victim impact statement of Ms Smith. Ms Smith sets out how she thought you were going to kill her and that she is now very anxious and nervous in her home. When you stole her mobile phone somehow you were speaking to her husband and daughter. They believed that Ms Smith had been kidnapped. This has raised the level of anxiety within her family members at that time.
34Exhibit “D” was the victim impact statement of Mrs McGowan. As a result of this offending Mrs McGowan had a month away from work and has since had trouble with sleeping and being able to function normally as she described it. She has sought counselling and been prescribed medication to help her sleep. She states that the trauma of the offending has left her angry, frustrated and fearful.
35Exhibit “E” was the victim impact statement of Mr McGowan. He states that he feared for his own life and for that of his wife. He has sought counselling and continues to experience ongoing fear.
36I accept that your offending would have a significant adverse impact on the wellbeing of all of your victims. They were all law abiding citizens going about their lives quietly when you just tipped their world upside down.
Personal circumstances
37You were 38 years old when you committed these offences. You turn 40 just after Christmas this year. You have a relevant criminal history. You have 12 prior court appearances commencing on 31 August 2009 and going through until 8 August 2017.
38Your criminal history includes charges of violence and dishonesty, damage to property, family violence offences and driving offences. You have been sentenced to community corrections orders, suspended sentences, imprisonment and fines.
39In the past, your longest sentence was a five month term of imprisonment. You have now served 431 days on my calculation of pre-sentence detention in respect of these charges not including this day.
40You are one of three children born of your biological parents. You have two half siblings on your mother's side of the family. When you were 12 years old your father died of a drug overdose. Your mother died when you were
13 years old. It was said that it was an accidental death, but it was thought to be a suicide.41Your parents had separated when you were very young and consequently your father was never really part of your life. After your mother passed away, initially you and your two siblings were placed together in foster care. This placement lasted for 18 months and you were all separated however you have continued to maintain contact with one another over the years.
42You were educated to Year 10 but because of your family situation your education was disrupted due to many relocations. Initially after school you started a carpentry apprenticeship and as I understand it you completed two years of that training. You have worked in different types of employment; freight, a crane rigger, and as a security guard. Your most recent and long term employment was that as a concreter and I note that you gave your occupation as a concreter when you were arraigned.
43You had been in a relationship with Ms Peters since you were 22 years old. It was a turbulent relationship which came to an end some five months before this offending. Nevertheless Ms Peters still maintains telephone contact with you whilst you are in custody.
44In the lead up to this offending there were three events which led to you to engage in the use of methylamphetamine. The first event was the breakdown of your relationship with Ms Peters and the final separation approximately five months before the offending itself.
45Your work as a concreter then dried up and as a result you become unemployed you were then under financial stress. Your response to these matters was to attend the local hotel as a regular drinker and then drifted into playing the pokies. One of your newfound friends at the pokies venue introduced you to methylamphetamine and the downhill slide began for you.
46On 6 September 2019, you were taken by police to the Werribee Mercy Hospital. You had gone to the police station in an agitated and paranoid state complaining that people were after you and that they were on the roof of your home.
47Police had checked your home, and no-one was there. As I say they took you to hospital. Ms Peters attended at the hospital to help settle you down. You were discharged from hospital on that same day. This event occurred eight days before your offending in this case.
48You have been examined by Dr Matilda Douglas, a psychologist, for the purposes of this plea. Her report dated 30 October 2020 is Exhibit 2 on the plea. You are assessed as having clinically significant PTSD symptoms.
Ms Douglas also noted that in her opinion at the time of the offending you suffered amphetamine induced psychotic disorder which would have heightened your impulsivity. You are currently prescribed 30 milligram of Avanza to assist you with your psychological diagnosis. Dr Douglas opines that your PTSD will make gaol time more burdensome for you than a prisoner of normal mental health.49I note that you have a job involving the use of a lawnmower which is a position of considerable trust in the prison. Whilst in prison you have remained drug free as evidenced by the numerous negative urine screens which are part of Exhibit 4.
50You have also engaged in courses when they have been available to you whilst you were in prison, the certificates for those courses were Exhibit 5.
51I accept that you are remorseful for these offences as expressed by you to
Dr Douglas.
Sentencing considerations
52The basic purpose for which a court may impose a sentence of just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.
53I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.
54I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly, but not exclusively, to the kind of sentences imposed in comparable cases and the statistics for those sentences at the time. I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another.
55Of course current sentencing practices are but one of the considerations I have to take into account.
56The only appropriate sentence for all of this offending is a term of imprisonment with a long non-parole period to encourage and control your rehabilitation after you have completed your time in custody.
57You have pleaded guilty to these charges. Whilst the plea was finalised after some negotiations and cannot be properly described as an early plea it has obviated the need for any of your victims to relive the events by giving evidence in a court.
58Further, your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of the court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.
59Your plea is also a clear acknowledgment by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea to these charges indicates and demonstrates remorse on your behalf.
60Your pleas of guilty also have a further utilitarian value because the plea is given in times when due to the COVID-19 pandemic you have not sought to delay the finalisation of these charges by conducting the trial at some indeterminate date in the future.
61In addition, it is relevant to take into account the impact of the lockdown restrictions that have been imposed as a result of the COVID-19 pandemic and that have been applicable to you and indeed other prisoners in Victoria. As a result of those restrictions you have not had the opportunity to have contact visits and the COVID-19 restrictions have the additional fact of limiting the time you might be able to spend out of your cell each day. That was addressed by Mr Patton during the course of the plea. Your placement and the COVID-19 restrictions have also meant that you have had very limited opportunity to participate in the courses directed to your rehabilitation although I note that you have taken every opportunity to do so. Those circumstances together with your psychological condition have meant and will mean your time in custody will continue to be more onerous than otherwise would be for a case of a prisoner with normal mental health.
62The offending by you is serious in respect of each offence and the collection of offences in such a compressed timeframe. The objective seriousness is indicated by:
(1) the maximum the penalty set down by Parliament in respect of each of the offences;
(2) your offending was gratuitous in your threatening behaviour to all of your victims;
(3) in respect of Charges 5, 6, 7, 8, 9 and 10 you were armed with a pick axe and gardening knife which I have referred to as gardening tools found by you;
(4) you invaded two homes, one whilst two of the occupants were present;
(5) your intention was to steal your victims' cars;
(6) the impact of your offending on the victims is significant as shown by the victim impact statements or the reactions of the victims to your offending at the time as described in the summary;
(7) your offending was conducted over a short and limited time period without any indication of planning or forethought by you.
63I accept that limb five of Verdins’ case is applicable to your sentencing considerations. I accept the opinion of Dr Douglas that your PTSD condition or symptoms will make your time in custody more burdensome than a prisoner of normal mental health. I take this matter into account when fixing your overall sentence for these charges.
64I asses your prospects of rehabilitation as fair. Whilst you have a relevant and substantial criminal history you have also maintained employment as a concreter for many years whilst a free man. You have made every effort to engage in the limited courses available to you whilst you have been on remand. You have also obtained a trusted work position in your prison unit.
65The most significant sentencing consideration is general deterrence in respect of the charges of aggravated burglary and burglary. The considerations of specific deterrence, just punishment, denunciation and protection of the community are also important in the overall sentencing synthesis.
66I have cumulated parts of each sentence on the base sentence which is Charge 8. I have moderated the respective cumulations of sentence so as to avoid the impositions of a crushing sentence which would be contrary to the sentencing principle of totality.
67I sentence you as follows: In respect of Charge 1, which is the attempted carjacking, you are sentenced to six months' imprisonment.
68In respect of theft of a motorcar which is the Toyota Hilux, Charge 2, you are sentenced to nine months' imprisonment.
69In respect to Charge 3, common law assault, you are convicted and sentenced to six months' imprisonment.
70In respect to Charge 4, the carjacking, relating to Ms Read and Ms Young, you are convicted and sentenced to 12 months' imprisonment.
71In respect of Charge 5, burglary, you are convicted and sentenced to 12 months' imprisonment.
72In respect of the assault of Ms Smith, which is Charge 6, you are convicted and sentenced to six months' imprisonment.
73In respect to Charge 7, theft of a mobile phone, you are convicted and sentenced to three months' imprisonment.
74In respect of the aggravated burglary at Skyline Road, Yarra Glen, which is Charge 8, you are convicted and sentenced to three years and three months. That is the base sentence.
75In respect to Charge 9, which is theft of a mobile phone of Ms McGowan, you are convicted and sentenced to three months' imprisonment.
76In respect of the theft of a motorcar which is Mr Benson's Lexus, Charge 10, you are convicted and sentenced to nine months' imprisonment.
77On the related summary charge of unlicensed driving you are convicted and sentenced to one month imprisonment.
78The cumulation is as follows: As I said the base sentence is Charge 8, which is three years and three months and I cumulate on that sentence and on each other the following.
79In respect of Charge 1, two months of that sentence. In respect of Charge 2, four months of that sentence. In respect of Charge 3, two months of that sentence. In respect of Charge 4, four months of that sentence. In respect of Charge 5, four months of that sentence.
80In respect to Charge 6, two months of that sentence. In respect to Charge 7, one month of that sentence. In respect to Charge 9, one month of that sentence. In respect to Charge 10, four months of that sentence and I have cumulated one month of the unlicensed driving which is the related summary charge.
81That is a total effective sentence of five years and four months. I fix a non-parole period of three years and four months. But for your plea of guilty I would have sentenced you to seven years and six months with a five year and six month non-parole period.
82I declare your pre-sentence detention as 431 days not including today. I just want to check. Is that a correct calculation?
83MS PAGANIS: It is, Your Honour.
84HIS HONOUR: Thank you. In respect of Charges 1, 2, 4 and 10 all licences are cancelled and disqualified for a period of two years from this date,
18 November 2020. Mr Cathcart, effectively what that is is on the top you have got five years and four months, on the bottom you have got three years and four months and I have declared you have served 431 days of the sentence. Do you understand that?85OFFENDER: Yes, Your Honour.
86HIS HONOUR: Thank you. Is there anything further, Madam Prosecutor?
87MS PAGANIS: Nothing further, Your Honour.
88HIS HONOUR: Has someone checked the arithmetic before I go?
89MS PAGANIS: In relation to the pre-sentence detention?
90HIS HONOUR: No, the cumulations.
91MS PAGANIS: No. It all seems correct to me, Your Honour.
92MR PATTON: Likewise, Your Honour.
93HIS HONOUR: Thank you. Mr Cathcart, do your best to stay on the path you are on in prison there in order to get parole as soon you can. You are at the crossroads of your life as an age of 40 plus old man and you can get out and go concreting and live a proper life when you get out, so good luck with it.
94OFFENDER: Thank you, Your Honour.
95HIS HONOUR: Stay away from that methylamphetamine.
96OFFENDER: Yes.
97HIS HONOUR: Thank you.
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