Director of Public Prosecutions v LAWRENCE-McGRATH

[2021] VCC 859

IN THE COUNTY COURT OF VICTORIA

Revised

(Not) Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01348

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW LAWRENCE-MCGRATH

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 June 2021
CASE MAY BE CITED AS:	DPP v LAWRENCE-McGRATH
MEDIUM NEUTRAL CITATION:	[2021] VCC 859

REASONS FOR SENTENCE

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Catchwords:

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Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Hannan	Office of Public Prosecutions
For the Accused	Mr T. Battersby	Victoria Legal Aid

HIS HONOUR:

1Matthew Lawrence-McGrath, you have pleaded guilty on indictment ending 44.1 to two charges of aggravated offence of recklessly exposing emergency worker to risk by driving.  That crime carries a maximum penalty of 10 years' imprisonment.

2On indictment ending 55.1, you have pleaded guilty to one charge of robbery and one charge of causing injury recklessly.  Those crimes carry maximum penalties of 15 years and five years respectively.  You have pleaded guilty to a settled indictment and must get the benefit of that.  I accept that you now profess appropriate remorse and you must also, of course, get the utilitarian benefit of that plea of guilty.  You are still only 23 years of age and it is a situation where the pandemic circumstances at the moment are such that guilty pleas are to be encouraged and obviously encouraged.

3I am well aware of the recent decision of Worboyes in the Court of Appeal in respect of that.  You have saved the victims from giving evidence and I note that indeed your plea of guilty has offered some sort of consolation to one of the police officers who did suffer as a result of your offending, but I will come to all that again in a moment  There is one uplifted summary matter, drive whilst disqualified.  Insofar as that matter is concerned, I will do it now.  I will just make it one month of imprisonment and that will be concurrent.

4You do have prior convictions, which are obviously admitted, as I will be pointing out, I think, in a moment.  You do have significant prior convictions for dishonesty and very significantly, you do have prior convictions for driving, including police pursuits.  You have been gaoled for it before and obviously the offending here calls for the application of general and specific deterrence, as well as denunciation and appropriate punishment.  There also has to be an element of community protection and I think denunciation in terms of driving at a police officer in that way does have to receive a significant sentence and accordingly that is what I will be doing.

5In this situation, I do not need to go through your prior history in detail.  As your counsel conceded, it is very significant.  He took me through in quite a helpful way actually as to how you progressed from Youth Justice, up until the adult system.  Of some comfort to me is the knowledge that you, in fact, were able to complete a youth parole, which shows that if you are really determined, you can in fact do it.

6On 2 May 2020, a 24-year-old Phoenix Cooper was at home during the evening drinking alcohol sometime around midnight and decided to take an Uber to the CBD, with the intention to buy and use some cocaine and party.  He took an unknown quantity of cash that he had received from the client for work, whatever that was.  He travelled alone and exited the car somewhere near Rose Lane in the CBD.  He was walking around randomly, asking people  - if he could buy drugs off them and after about 20 minutes he ran into you.

7You apparently produced a small bag of cocaine and said that you had more in your nearby apartment.  The two of you walked to an apartment complex and came again out of it and I do not think I need to go into the detail of all of that, but at one stage, the victim accepted a drink from you, then made his way out to the balcony.  Whilst looking out over the balcony with his back turned, you struck him to the back of his head four or five times.  As you did so, you said:  'Give me your money, give me everything.'

8You reached into his pocket and took his iPhone and cash that the victim says was around about $500.  The two of you wrestled and moved into the apartment while doing so.  The victim was able to locate a fork and tried to stab you with it.  You said:  'Don't hurt me, I was just trying to make some money' and you attacked him again.  The pair of you left the apartment and ultimately the victim was conveyed to the Royal Melbourne Hospital and had already by that stage been spoken to by police. You had been taken to by the Melbourne West Police Station by an Uber driver.

9A CT scan revealed the victim had effectively a displaced left zygomatic arch fracture and a moderately displaced fracture of the anterior lateral wall of the left maxillary sinus, which in real sense is a fracture of the eye socket.  There is nothing to suggest that that has not, over a period of time, ameliorated and there is no victim impact statement before me.

10There is a milieu of material where all this took place, which I am not going to go into totally, if you are going to be wandering around in the middle of the night, with money in your pocket, trying to buy cocaine, you are taking a certain risk, but the fact of the matter is that you did assault him, you did rob him and you do, as I say, have prior convictions and gaol sentences for dishonesty.

11The other matter is, in my view, more significant.  On 15 May, that is, a couple of weeks later, about 1 o'clock in the morning, a Dog Squad member from the Victorian Police saw a motor vehicle travelling towards him at a very fast rate of speed.  That vehicle was stolen and you were driving it.  The two other police officers, Detective Sergeant Mosdale and a detective, Leading Senior Constable Nichol, were conducting a patrol of Ashburton and recognised the Commodore in a carpark at 9 Alamein Avenue.  Mr Knight, the Dog Squad member, had requested assistance after he lost sight of it.

12The unmarked police VW Passat was driven into the driveway of the units, which I understand were commission flats.  A female walked away - and you walked away from the driver's side of the Commodore.  Its lights were off and there did not appear to be anyone in the driver's seat.  The police car stopped about 10 metres behind your vehicle.  You walked in the direction of the police car and immediately ran to the stolen Commodore and entered the driver's seat.  The female who was with you ran towards Unit 9 or 10.  You started that car and put it into reverse and it is from there that the offending commences.

13As was discussed openly in the course of the plea, your best choice at that stage would have been to run.  However, you have made a conscious decision to behave in this way.  I accept that your counsel says that that decision was made on the spur of the moment, but unfortunately you have done this sort of thing before and there has to be an element of knowing what you are doing involved.

14You reversed the Commodore at speed, with the wheels spinning back towards the police car and you ran in front of it.  The impact was severe, caused the car to shunt backwards and the police officers to be jolted in their seats.  You then drove it forwards to the edge of the carpark and reversed back again.  They tried to reverse the police car in an attempt to avoid another collision, however, you again rammed the back of your car to the police car at speed, drove forward, stopped, selected reverse and before you reversed again, a male passenger opened the front passenger door and ran towards Flat 7.

15You again reversed at high speed into the police car.  You moved forward and at this stage, the police car has moved forward in an attempt to shorten the distance between the two of you.  You stopped and reversed into the police car for a fifth time.  You forced that collision, forced the rear left-hand wheel of your vehicle off the ground.  By that time, your Commodore only had a very short distance in front of it and Detective Sergeant Mosdale jumped out of the police car. He took his firearm and ran to the passenger side of the Commodore.  You looked directly at him as he pointed the gun at you.  He was yelling out, 'Police get out of the vehicle.'  You then accelerated the Commodore and swung the rear of the car, with the wheels spinning towards him, where he stood in a position between another parked car.  He was forced to move to a position forward, to avoid impact.

16He pointed the firearm again at you, yelling, 'Police get out of the car.'  You were looking directly at him, then reversed the Commodore, before accelerating forward and turned the front of the car towards him.  He managed to avoid being hit and moved to the rear of your vehicle.  You then span the wheels and swung the rear of the Commodore towards him, nearly crushing him between your vehicle and a parked green car.  He was able to run forward to avoid the collision.  The other policeman drove the police car forward, striking your vehicle, which allowed Sergeant Mosdale to get into a position of safety.  Again, you drove forward, stopped and reversed at speed, ramming into the police car and causing him to move backwards by some two to three metres.

17You then drove forward, opened the driver's door and ran away in a northerly direction through the carpark into a recreational garden area.  Other police members arrived at the scene, including the police dog handler Knight with a dog.  The area was cordoned off and eventually the dog found you in a yard off Victory Boulevard and I understand that when it did find you, it was pushed over the fence and attacked you.  I understand, from what has been put to me, that you still have effectively nightmares about that, being attacked by the dog.  That is understandable.  I suppose in a sense it is extra-curial punishment, but I think them is the risks you take if you are going to run from police.

18Each of the police officers involved provided a victim impact statement and I might say that in terms of this sort of offending, each of those victim impact statements very eloquently and unemotionally, actually, I think they have been written very well, explains the consequences of when this is done to police.  Police are simply out there trying to protect the community and they do not have to put up with people like you driving vehicles at them even in an endeavour to escape, putting them at the sort of a risk that they were put here.

19Leading Senior Constable Nichol said a couple of weeks after the incident, that he is still in a constant state of vigilance.  He said he was in his - as an example, he was in his private car in the drive through at McDonalds and the car in front drove past the speaker box and stopped suddenly, then started to reverse backwards.  He said he saw the reverse lights and backwards movement and said he started to shake uncontrollably and it felt like his body was shutting down.  It was the first time in his life he had ever experienced a panic attack.  It is clearly directly attributable to what you did.

20He said,

'I have recurring nightmares in relation to the ramming.  I'm still in utter disbelief and angry that the accused made a conscious decision to run back to the stolen car and deliberately and continually ram us, without any thought to our welfare, with the damage he was causing to property.  This has affected my home life, issues with my family, with my work and as such, I didn't discuss the incident, I don't need the added burden of them worrying.'

21His family have pointed out to him he seems distant and distracted and not wanting to participate in social outings.  He does say that there is, 'Some solace' that you are now at least taking responsibility for the actions.

22The police officer who got out of the vehicle and drew his firearm also describes very clearly what occurred.  I suspect that the prosecutor is right when he thinks that this may be the first time that this particular police officer has had to draw his firearm and consider whether he is to shoot somebody or not.  He said that after the incident, he recalled his hand shaking uncontrollably and he was feeling sick.  He said he was drawing his firearm, as he was of the belief that you were trying to kill both him and his partner.  He recalls thinking to himself that the last thing he wanted to do was use a firearm to take another person's life, but he felt that he was being drawn close to it.

'I recall after the accused ran off, that due to my emotion and this physical state, that it took me a significant time to return my firearm to the holster.'

23He goes on to describe the sleeplessness and the concern and anxiety that all this has caused him.  He said it has had a profound impact upon him personally and emotionally and has had the sort of consequences that one would expect, including increasing his alcohol intake and all those sorts of - fractured sleep patterns and all those sorts of things.  It has had a significant impact on him and I accept that that is the case.

24That is why you cannot do this and that is why the police are entitled to protection, from people who do such things.  All this offending calls for the application of general and specific deterrence and of course, full denunciation, a significant element of community protection, so I am aware there is an element of bargaining involved in all of this but it needs an appropriate punishment.

25I am very conscious of your age and I am very conscious that you, in effect, insofar as police and pursuits are concerned, done this type of thing before.  It makes it difficult to ascertain what I should do with one so young and I then look to matters personal to you and indeed, you have had a fairly unfortunate upbringing.

26Tendered on your behalf, or one of the submissions of your counsel, which I found helpful and also a report from Mr Warren Simmons, psychologist, he said that you were 23.  Your mother was 56 and described as a drug user for all of her life.  She was using heroin with your father for a time, after which there seems to have been some abstinence, before she commenced using amphetamines when you were about 16 years of age.  Your father is 65 and had also been a drug user.  I understand that he had been in and out of gaol.  He has subsequently been able to rehabilitate himself and he is desirous of endeavouring to help you in your life, as it goes ahead.

27Your parents separated when you were about two or three.  You had a younger brother, to whom you are still close and whom you recognise is doing quite well in life.  You when speaking to Mr Simmons, there was a lot of chaos, as well as frequent drug use.  You said that you and your mother shared a bedroom, that you witnessed drug use over the years, she kept her drugs and needles in the top drawer and it was afterwards that you really realised what was occurring.  This occurred at your maternal grandparents' house.  You said they were very good people.  They helped in stability, in terms of food and clothing and they were always around when your mother was not.  You said that you were never without and when you were younger, your mother would take you to football training and often kick the ball with you.  However, you did not go on day trips, or ever recall having friends over.

28Unfortunately, for a child, that is the real problem here, of the inconsistency of the drug-addicted mother, but you did at least get on well with your grandparents.  You had an uncle at one stage who came and stayed, who was violent towards your mother, as he did not like her and you have ultimately formed the view that your grandparents did not intervene in that scenario, because they were most likely scared of their son.

29You, at the age of 16, moved out of home.  Prior to that, you had started to get criminal convictions, or findings of guilt, at least, in the Children's Court.  As I understand it, there is quite a strange family background and you were very close to your grandmother.  She died when you were 14.  Your mother was then still using significantly and your grandfather basically kicked her out.

30Between the ages of 17 and 18, you were actually living in residential care and that is never a good recipe for a young person, to be put in with people who have the same sort of difficulties and offending relationships are formed and it is from that point of time on that the offending really becomes serious.  You still get on well with your grandfather, you get on well with your brother and your father has endeavoured to come back into the scenario.  When you were younger you played footy for East Sandringham and you found that enjoyable.  In terms of the future, you want to go to TAFE, but have indicated you are admiring of your brother, in terms of what he has been able to do.

31As I already said, your counsel took me through the history of your prior convictions and I note that you had served a sentence of 360 days, as a result of a breach of a Magistrates' Court drug order.  That leaves you in a situation where there is something in the order of 240 days Renzella time and you are left with 181 days of presentence detention for this actual offending.

32You have now a 14-month-old son.  You now seem to understand the responsibilities of parenting.  You do want to look after that child.  That child lives with its maternal grandmother.  You have had, in the past, relationships with drug-addicted people.  We hope that the knowledge of that son causes you, or gives you cause to try and turn your life around.

33In my view, within the circumstances described in such cases as Toumngeun and the like, the principles in Mills and all those cases are well known to all of us and I will do the best I can in regard to that.  What is of concern and it is hard to know really what to do about it is, that since you have been in gaol, you have been a billet, you have been a peer educator, you have been in there during COVID lockdown, which means visits and things like that have been limited, or not undergone at all.

34I am aware of the difficulties that that has caused, though your counsel points out to me, I understand exactly what he is saying, that you could be regarded as a bit too comfortable in gaol.  I am concerned, as he is, about the prospect of institutionalisation. In gaol, you get three feeds a day and you have to make very few decisions.  It is not the place you want to spend the rest of your life.  You want to be an active member of the community and you have got a child.  You have got family supports.  You have got your father, who was in this situation of drug-addicted and criminally addicted, trying to assist you.

35The report from Mr Simmons went through most of that material.  He says, in terms of your drug and alcohol history, that you encountered at the age of 13, that became regular at around about 15 and not much older than that when you started using amphetamines, but you did not use the two together.  You found that smoking amphetamines at around about 18 made you feel better and feel more alive.  It was daily from then.  Initially you got up to two points a day.  You have now been in gaol and I accept, abstinent from drugs.  Your counsel pointed out to me that when you received the drug court order some time ago, that you were using in gaol and as soon as you came out, you started using again.  Those matters are obviously difficulties with this type of thing and probably you were doomed before that disposition even commenced.

36So far as school is concerned, you got part of the way through Year 7.  You were getting Youth Justice Centres sentences in your earlier years and sadly, you completed Year 10 at Malmsbury.  You have been in community colleges and it is pointed out by Mr Simmons the same thing that was mentioned before about residential units, with the other young people, that you basically knock around with.  Human Services have become involved in the situation with your son and I am sure that they will have something to say to you about how you are going to have to behave when you are ultimately released on parole.

37I do not think I need to go into the other substance abuse that has taken place.  You clearly have had a very fractured and dysfunctional childhood.  You are going to have a significant period of time, with a significant period to come, unfortunately, for you to get your head around being released back into the community and as I have said, becoming a useful member of it.  Mr Simmons points out that you benefit from ongoing drug and alcohol counselling and various other psychological matters.  That is the situation which is going to have to be looked into by the parole board and it is not my function to look into all of that.

38I think they are really the matters that need to be looked at.  In gaol, you have done a warehousing course.  You are looking forward to doing a program at the Richmond Football Club.  You are still young and hopefully there is a chance for you, but what you have done simply - certainly in relation to the driving of the motor vehicle simply is not on.

39The prospects of your rehabilitation are really up to you and what other people can do to help you.  The risk of you reoffending, you get out and start using again is going to be massive, I would have thought, but you are 23.  You can turn your life around, you have got the reasons to do it and the community can just hope, in those circumstances, even though it has to be a significant sentence for - or head sentence, I have determined to give you a lower than normal minimum term, to endeavour to effect that rehabilitation.

40Accordingly, you are to be sentenced as follows.  On indictment 44.1, on Charge 1 of robbery - sorry, 44.1.  Hang on, no, I have got my numbers wrong, sorry, gents.  Yes, sorry, no, on indictment 44.1, yes, on Charge 1, two and a half years.  Charge 2 - sorry, two and a half years.  Charge 2, eighteen months.  Six months of Charge 2 cumulative upon Charge 1, giving an effective - total effective sentence on that indictment of three years.  On those two charges, any licence, any licence to hold - drive a motor vehicle is cancelled and disqualified on each for 24 months, they to run concurrently.

41On Indictment 55.1, Charge 1, 12 months, Charge 2, six months.  Three months of Charge 2 cumulative upon Charge 1, which gives you 15 months on that indictment.  I direct that six months of the overall sentence imposed on Indictment 55.1 be served cumulatively on the sentence imposed on indictment 44.1.  That gives an effective total head sentence of three and a half years.  I am certainly aware of that with someone as young as you, who has already done a very significant period of time and there is Renzella time involved as well and accordingly, the best I can do, I think, in these circumstances, to administer justice, as such, is to direct that you serve a minimum term of 21 months, before becoming eligible for parole.  In those circumstances, obviously I am taking into account totality and the benefits of your plea of guilty.

42Adding the two together, for the purposes of s6AAA, so that but for your pleas of guilty and I am aware that there are settled indictments, which makes this a bit academic, I would have sentenced you to be imprisoned for a period of five and a half years, with a minimum term of three and a half, so that you can see the benefits that you got from being very sensible in these difficult times and pleading guilty.

43I declare - sorry, I direct that 181 days be reckoned as having been served under the total overall effective sentence and what we will need to do is, the orders will relate each of the indictments to each other, so that there is no mistake that - what I have done with that time served.  All right, gents, is there anything else I need to say?  Any other orders, Mr Hannan, that you know of?

44MR HANNAN:  I just didn't catch whether Your Honour imposed a term, or a sentence, for the summary offence, the driving whilst disqualified.

45HIS HONOUR:  Yes, a month, a month concurrent.

46MR HANNAN:  Thank you Your Honour.  Then that should do it, if you sign those - all other ancillary orders, then I think that's it, Your Honour.

47HIS HONOUR:  Yes, all right, I've done that, yes.

48MR BATTERSBY:  Nothing further from me, Your Honour.  As the court pleases.

49HIS HONOUR:  Yes, thanks.  Now, did you want to talk to your client,
Mr Battersby, or ‑ ‑ ‑

50MR BATTERSBY:  Briefly, if there's an opportunity.

51HIS HONOUR:  Yes, no, of course we can.  I'll just leave the Bench and
Mr Hanko will organise that for you.

52MR BATTERSBY:  Yes.

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