Director of Public Prosecutions v MacDonald
[2012] VCC 720
•31 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00353
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE MacDONALD |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 May and 30 May respectively | |
DATE OF SENTENCE: | 31 May 2012 | |
CASE MAY BE CITED AS: | DPP v MacDonald | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 720 | |
REASONS FOR SENTENCE
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SUBJECT: CRIMINAL LAW
CATCHWORDS: Sentence – Plea of guilty – Attempted armed robbery – This offence committed when bail had been revoked for failing to appear on other matters - Extensive criminal record – Long history drug addiction – Psychological issues resulting from drug use - Totality principle – Family support - Prospects of rehabilitation fair
SENTENCE:Convicted and sentenced to 2 years’ imprisonment with 12 months’ imprisonment of that sentence to be served cumulatively with sentence currently being undertaken – new parole period set of 9 months’ imprisonment – s.6AAA Sentencing Act 1991 declaration – Ancillary orders – Disposal and Forensic sample orders
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N. Todoor | Solicitor for Office Public Prosecutions |
| For the Accused | Mr R. Stransky | David Barrese & Associates |
HER HONOUR:
1 Shane MacDonald, you have pleaded guilty to one charge of attempted armed robbery which carries a maximum penalty of twenty years' imprisonment.
2 The learned prosecutor opened the matter as follows:
3 By way of background, she told me that you are twenty-three years old, having been born on 2 April 1989. At the time of the offence, you were twenty-two years old.
4 The victim and you were not known to each other before the offending.
5 In the morning of Tuesday, 9 August 2011, you met with your girlfriend at that time, Samantha Naylor, at Docklands. You drove with her to Mitcham and stopped at a disused service station about 150 metres north of the intersection of Mitcham Road and Whitehorse Road, arriving there some time before 11.45 am.
6 You were seen sitting in the parked car by two witnesses who were on their lunch break at 11.45 am and 12.30 pm. Shortly before 1.00 pm, you got out of your car and walked to the intersection of Mitcham Road and Whitehorse Road.
7 At about 1.00 pm, the victim in this matter, a Manikawasaker Thayaparan, arrived at a Westpac ATM on the corner of Mitcham and Whitehorse Roads. He commenced withdrawing money from the ATM and you stood behind him as he did this. A third male, a Glen Agnew, arrived at the ATM and stood a short distance from you, waiting his turn to use the ATM.
8 The victim withdrew $300 and you moved in close towards the victim’s side. You said, “Give me the money”. The victim saw that you had a knife in your hand and you were pointing this towards his side. The knife was about 20 centimetres long with a blade of about 7 centimetres. The victim put the money into his own pocket and, in his statement to police, he said that he was not scared because he realised that you were quite nervous.
9 You then walked away north along Mitcham Road and ran back to the parked car at the service station. Mr Agnew did not see the knife or hear what you had said. The victim and Mr Agnew then went to a nearby newsagency where the police were called.
10 You and Ms Naylor drove away. You were later dropped off at the Heatherdale Railway Station at about 1.45 pm.
11 On 24 August 2011, Ms Naylor was interviewed at the Nunawading Police Station. She denied any knowledge or involvement in respect of the attempted armed robbery in which you engaged. She made a written statement which detailed her movements and involvement with you on the day in question.
12 She further said that she found a steak knife under the driver’s seat of her car whilst cleaning it on 21 August 2011. She said she had not seen the knife before and subsequently threw it away.
13 On 15 September 2011, the victim identified you from a photo board.
14 You were arrested on 26 August 2011 at your home address and you were taken to Chelsea Police Station for interview. You took part in a record of interview where you said the following things:
-That you were with Ms Naylor in the Mitcham area on 9 August 2011;
-That you were not driving as you did not have a licence and were on bail at the time; and
-That you did not commit the attempted armed robbery.
15 You were charged on 26 August 2011 and were taken the Melbourne Magistrates’ Court where you were later granted bail.
16 You failed to attend Court on 11 November 2011 and a warrant was issued for your arrest. You were arrested on 6 January 2012 on a number of outstanding warrants, including a warrant in relation to this matter, and you were then remanded in custody.
17 You pleaded guilty to the offence for which I now sentence you on 8 March 2012 on the day listed for a contested committal. The matter resolved before the contested committal hearing commenced and therefore witnesses were not subjected to cross-examination, as they were not required to give evidence.
18 You have not spent any time in custody in relation to the offence for which I now sentence you. However, you were sentenced to a total of 366 days with a non-parole period of six months' imprisonment on 21 February 2012 at the Melbourne Magistrates Court. On that day, you were ordered to serve 184 days, being the unexpired portion of an intensive corrections order and you were also sentenced to a term of imprisonment of 182 days for dishonesty offences. This term of imprisonment was ordered to be served cumulatively upon the sentence for breach of intensive corrections order.
19 The time spent in custody from 6 January 2012 to 20 February 2012 was taken into account in respect of that Magistrates’ Court sentence and 46 days was reckoned as already served. Therefore, in sentencing you, I take into account that you have been in prison from 6 January 2012. The learned prosecutor told me that you were given an earliest release date of 18 June 2012 in relation to the Magistrates’ Court sentence. This was confirmed at the further plea hearing yesterday.
20 Your offending for which I sentence you is serious, notwithstanding that I cannot be satisfied beyond reasonable doubt that it was premeditated. You took the brazen decision to accost a person in broad daylight whilst he was doing nothing more than accessing his own money from an ATM, which he was entitled to do without any interference from someone like you. Fortunately, for the victim and for you, he was not terrified by your actions. The only redeeming feature in relation to the offending is that you had the good sense and perhaps some sense of decency not to persist with your demand when the victim ignored you. Your decision to move away at that point was your only saving grace in relation to the seriousness of the offending itself.
21 The fact that you were an entrenched drug addict at the time, which your counsel indicated was the basis for your level of nervousness and agitation on that day, gives me no comfort as to the way in which you behaved on that day, or the predictability of such behaviour if you are to continue to abuse drugs in the future.
22 I was told that when you committed this offence, you were supposed to be on bail and the only reason that you were not, was that it had been forfeited by virtue of you failing to appear whilst on bail – this was replaced by a warrant for your arrest. I regard the fact that you committed this offence in circumstances when you were supposed to be on bail but had dishonoured that commitment, as an aggravating feature of your offending.
23 You have a criminal history which is of concern and as you have acknowledged to Mr Candlish, psychologist, your criminal history is very much tied up with your severe drug addiction. Your criminal history commenced in 2009 and is comprised largely of dishonesty offences, although there is a prior matter for possess prohibited weapon and discharge missile, for which you were fined at the Ringwood Magistrates’ Court in September 2009. Over and above your prior convictions, you have subsequent matters which led to your incarceration on 21 February, to which I have previously referred - that is a sentence for incarceration on that date. Apart from the breach of the intensive corrections order which was dealt with on 21 February, you were also sentenced in relation to a number of dishonesty offences, as well as for charges of failing to answer bail.
24 In relation to the offence for which I sentence you, your conduct is deserving of just punishment and denunciation. Further, I must give significant weight to the principle of general deterrence – that is, in a bid to deter others from behaving as you have, I must impose a sentence which sends a clear message to others tempted to behave as you have and that such conduct will not be tolerated. Moreover, your criminal record is fairly extensive and of concern is the fact that your offending on this occasion appears to be an escalation in your criminal activity. In light of your antecedents and subsequent offences, I must give not insignificant weight to the principle of specific deterrence, but of course, bearing in mind that you have been undergoing a sentence in relation to other matters since February of this year, and have been in gaol since January of this year.
25 On the original plea hearing, your counsel properly acknowledged that a sentence of imprisonment was the only appropriate penalty in your case, but correctly submitted that in imposing such a sentence, I must be mindful of the principle of totality. He also submitted that as you are still a relatively young man, I ought have regard to the need to impose a sentence which insofar as it is possible, enables you to rehabilitate within the community whilst subject to an appropriate period of parole.
26 Your counsel submitted that your situation in terms of offending whilst not technically on bail meant that the relevant provision demanding cumulation of sentence for those who offend whilst on bail, did not apply. However, your counsel also correctly pointed out that I have a discretion to impose cumulation in any event, bearing in mind the principle of totality. As I have already indicated, I regard the fact that you committed this offence at a time when your bail had been revoked for failing to appear, as an aggravating factor and I will allow for this in sentencing you. I also regard the fact that you have committed a further offence as warranting a considerable degree of cumulation with the sentence that you are presently undergoing, in all the circumstances, and having regard to totality.
27 On the original plea, I was taken to the report of a Simon Candlish, psychologist, dated 20 February 2012. He interviewed you on 16 February 2012. This was in preparation for the Magistrates’ Court hearing. You pleaded guilty to the offence before me on 8 March 2012, and there is no reference to the attempted armed robbery in that report. It may well be because you had not decided to plead guilty to this until after the report was prepared. In those circumstances however, it was deemed necessary for a supplementary report to be obtained from Mr Candlish so that he might provide a further opinion based on the matter for which I now sentence you. That report is now to hand and I will refer to it shortly.
28
In terms of your background, your counsel relied on the contents of
Mr Candlish's first report which is also instructive insofar as your general attitude to your offending was concerned as at that time, that is your attitude as at February of this year.
29 In that initial interview with Mr Candlish, you stated that your memory was poor and you could not recall your childhood due to abuse of illicit drugs, especially the abuse of the drug ice. However, as the interview progressed, you were able to recall a number of past events including prior offences. You did not show any evidence of thought or perceptual disturbance, but appeared to be unreceptive and disinterested at times during that interview. It appears that in the past you have attempted suicide by drug overdose and it would appear that you have also suffered a psychotic episode which appears to have been associated with drug abuse, and this resulted in a brief hospital admission.
30 You are an only child and reported that your father committed suicide when you were about nine or ten years old. You reported to Mr Candlish that you had poor memory due to past drug abuse. You did not recall your father being around much and expressed some resentment in respect of this. You reported that you had a good relationship with your mother before you started using drugs and that you felt cared for by your mother, who has worked to support you as you grew up. Your mother and her partner were in court at the original plea hearing and subsequent hearing and they are here today I note. They, together with your uncle and some other family members and friends, have offered ongoing support in your life when you are released from gaol. This is something which I take into account, in a positive sense, when assessing your prospects of rehabilitation; although, it would appear that these people were available in your life in the past but you have offended in spite of them. In any event the fact that they still remain supportive of you is a positive indicator in terms of your prospects of rehabilitation.
31 You reported to Mr Candlish that you were often suspended from school when you commenced high school, for various reasons including being violent towards fellow students, talking back to teachers and smoking marijuana. You reported that you would, to quote you, “Hang around with older guys who had weed.”
32 You would smoke marijuana with your peers. You then progressed to using ecstasy every second weekend during Year 10 and at the end of Year 10 you completed your schooling.
33 You then commenced a bricklaying job as a labourer for eight months, but you gave this up, ascribing fault to your employer, then you, to quote you, “Partied and took drugs.”
34 After this you worked as a concreter for three months and did some other kinds of labouring work for a number of months. You ceased a job as a roof tiler, again ascribing blame to your boss who you referred to as being, to quote you, “An idiot and an alcoholic.”
35 You did not work consistently since this time, although you candidly admitted to Mr Candlish that you sold drugs from time to time in the context of attending raves and parties on a frequent basis. As your counsel said, it appears that you became completely hedonistic, saturating yourself in the drug world that came with parties and the like. Your counsel submitted that there was a direct nexus between your drug taking and this hedonistic lifestyle that you pursued, and that over the course of about four years, you have been addicted to the drug, ice.
36
According to Mr Candlish, during your employment period and after it, you were using drugs and attending parties and raves frequently. It was in this context that you decided to sell drugs yourself and you reported to
Mr Candlish that you would make thousands of dollars doing so, then would go to hotels and gamble this money. You told Mr Candlish that you, to quote you: "Liked the power and ability to do what (you) wanted, explaining that others would do what (you) wanted them to, such as driving (you) around and doing jobs for (you).”
37 I make it clear Mr MacDonald that despite your admissions to drug trafficking I do not sentence you on the basis of such admissions; nor do I factor this into my sentence in a negative sense in any way.
38 You reported to Mr Candlish that you attempted suicide after discovering that your girlfriend had been unfaithful to you. You attempted an overdose using the drug GBH, which led to unconsciousness. It would appear that you were very nearly successful in your attempt but fortunately, you survived. You reported that after this incident, you, to quote you, “Hit the drugs even harder.”
39 You would often not sleep for a period of up to two weeks at a time. When you were about twenty years old, you appeared to have suffered from a drug-induced psychosis which led you to go to hospital for treatment. You recalled taking anti-psychotic medications, however stopped this after a few days because you kept falling asleep. You also took anti-depressants at about this time; but only took these for two days because of an upset stomach and an inability to concentrate.
40 Prior to your incarceration, you had not participated in any drug and alcohol treatment and intervention, having failed to attend any sessions of treatment during your intensive corrections order. Mr Candlish was of the view that this appeared to be in part due to the fact that you were considerably drug-dependent and had poor consequential thinking as a result.
41 In terms of personal relationships, it appears that you have had a number of transitory ones, reporting to Mr Candlish that you were too busy, to quote you, “Going hard on drugs and gambling,” to maintain any of these.
42 You had a relationship with a female for about eight months which ended when you discovered her infidelity and you also had a one year relationship from January 2011, which ended, apparently due to the female’s constant, “Nagging and whinging,” again to quote you.
43 You reported to Mr Candlish that you did not love this woman, but she was someone to hang around with and she had a car. I found this aspect of your relationship history most curious in that, your counsel advised me on the plea that the purpose for you sitting in the car on the day of the offence for which I now sentence you, was that you and your girlfriend were breaking up and that this is what happened on that day. I found it difficult to reconcile this explanation with the apparent one year relationship which you had with a female from January 2011. On the further plea, I asked your counsel about this and was told that on the day of the offence for which I now sentence you, you and your girlfriend had parted ways.
44 However, when I pointed out the apparent discrepancy, he obtained instructions from you that you resumed this relationship after the date of the offence. I have some concerns about the veracity of some of the matters I was told surrounding the circumstances of your offending Mr MacDonald, as I have indicated to your Counsel in discussion. But I find your account as to how you came to be at the disused service station for so long on the occasion of the offending as lacking some plausibility, especially in light of the fact that there have been two accounts given as to the duration of your relationship with your girlfriend. Whilst I have suspicions as to the reason you were at this location on that day, I take it no further than that, and make no adverse finding against you in this regard. Rather, I simply put your explanation for being at that disused service station on that day to one side.
45 You have identified a female cousin and a male as being your main friends. These people appear to be the closest friends that you have.
46 In his first report, Mr Candlish postulated some theories as to why it is that you have behaved in the way that you have in the past. Bearing in mind that he was not appraised of the offence for which I now sentence you at that time. In his first report he said:
“Due to drug use and acting out behaviours, he has not developed the necessary life skills to delay gratification, consider consequences to his behaviour and effectively problem solve. His continued heavy use of drugs and maintenance of a drug selling lifestyle involving sleep deprivation, gambling and parties has resulted in an arrested development whereby he has not developed skills that ordinarily, he would have learned through pro-social pursuits. Such arrested development may have contributed to Mr MacDonald’s immaturity, short sighted thinking, his impressionability and low self worth. His heavy drug use during a critical period of brain development is likely to have affected his capacity to engage in reflective thinking, emotional regulation and consequential thinking.”
47 The overwhelming picture from Mr Candlish’s first report, which is echoed in his second, and in your own observations, is that for whatever reason, you have an entrenched drug addiction which is driving your criminal behaviour. If you fail to address your drug addiction, you are at significant risk of spending a good deal of your life in gaol. As at February 2012, Mr Candlish was of the view that you had limited remorse in relation to the offences of which he was appraised at that time. He also observed that you appeared to have the support of your mother and cousin and a close male friend, and you also had a desire to resume employment upon release from gaol.
48 He listed a number of risk factors in terms of re-offending. In this regard I refer to Paragraphs 26 to 31 of his first report. He listed protective factors as being the support that you have from your mother and others and a realisation that you were aware that you need to stay away from past drug associates, considering that residing interstate may be needed to achieve this. You also said that you did not wish to go back to gaol.
49 Mr Candlish was of the view that you appeared to represent a moderate risk of further re-offending in the nature of theft or dishonesty offences or drug trafficking. Of concern he said this:
“It is plausible that he could use physical force given the admittance of past aggressive behaviour. However, he stated that he was not involved in any violent behaviour during his four year period of heavy drug use.”
50 As I said in discussion with your counsel on the original plea hearing, the use of a knife in a bid to obtain money from a person, appears to me to be in the nature of violent behaviour – a matter which was apparently not reported by you to Mr Candlish at that time, notwithstanding that you had committed this offence in August of the previous year. It was either that or Mr Candlish did not see fit to include it in his report. Whilst, you may not have decided to plead guilty to the matter now before me at that time, it is of concern that you apparently did not see fit to tell Mr Candlish about such behaviour, or that you did not view such behaviour as being violent. The alternative is that Mr Candlish did not see this as being somehow relevant to the report at that time. I can take the matter no further.
51
In his supplementary report, which was based on an interview on 18 May,
Mr Candlish recorded that you were more open and you stated that at the first interview you were still “coming off” the drugs and didn’t care; but now you were able to make some plans and goals for the future. You expressed some empathy for the victim in respect of the offence for which I now sentence you. You said you were not a violent person and due to the effects of ice you were not in a normal state on the day that you committed the offence.
52 You expressed to Mr Candlish that you intended living with your mother when you were released; that you would take advantage of drug and alcohol counselling and that you intended to engage in healthy activities, staying away from anything that might expose you to drugs. Mr Candlish said that you fell into the low end of the moderate risk category for further offending, observing that the most likely scenario would involve criminal behaviour which assisted in maintaining illicit drug use. He observed that the offence for which I now sentence you involved the threat of a weapon and that you took this no further. While this is true, I find it difficult to accept Mr Candlish’s opinion that you fall in the low end of the moderate risk category when you fell within the moderate range at a time when he had no apparent knowledge of the offence for which I now sentence you. Perhaps he takes this view in light of your improved attitude, expression of remorse and apparent status of being drug free. In any event, I must make an assessment of your prospects of rehabilitation on the basis of all the relevant matters in your case.
53 I was told by your counsel on the original plea that you have taken stock whilst in prison and have embarked on a number of courses which attests to you being drug-free. I had asked for drug screen certificates at the original plea hearing, but at the further hearing, I was told that these were not available. On balance though I take into account your most recent interview with Mr Candlish and I accept that you are drug free at present.
54 Of significance, you recently said to your mother when she was visiting you at Fulham Prison - “I know it’s my fault” - which was a recognition by you that you were prepared to take responsibility for what you had done. In terms of taking responsibility, I do make appropriate allowance for the fact that you pleaded guilty at the contested committal stage, which saved the witnesses, the trouble and trauma of giving evidence and has saved the community the time and expense of running contested criminal proceedings. In the circumstances, you are entitled to a not insubstantial discount for this. I accept that you are developing a sense of remorse and insight into your offending.
55 Your counsel suggested that in your particular case, gaol had actually been a benefit, as it had afforded you the opportunity to get off drugs. He referred to that fact that the learned Magistrate had imposed a sentence in February which enabled you to benefit from a rather lengthy parole period. Your counsel also indicated that upon your release you can look to your uncle for work which will assist you in your path of rehabilitation. You no longer plan to travel interstate but to remain close to your family and friends who are most supportive of you.
56 I was told that you are a completely different person when you are off drugs – that you are a most engaging young man with a good deal to offer. Whilst in gaol, you have taken every opportunity to better yourself, engaging in the various courses to which I have previously referred.
57 In terms of your prospects of rehabilitation, it is very much early days for you Mr MacDonald. In the past, you have had your mother’s support and the support of others, but you have not taken advantage of this, and you have chosen to re-offend in the context of continual drug abuse. Your rehabilitation is very much dependent upon your ability to stay away from drugs, both in gaol and when you are released. In light of the further report of Mr Candlish, and the supports that you have in the community, the promise of work, plus a degree of insight and remorse which you have shown, but in factoring also your prior convictions and subsequent offending, I find that your prospects of rehabilitation are fair.
58 I also must attached some weight to the need to protect the community from the prospect of future offending by you.
59 I record that you have already spent 145 days in custody but none of this is by way of pre-sentence detention for the matters before me. In relation to the Magistrates' Court sentence imposed earlier this year, 46 days was reckoned as served in respect of that sentence. I have turned my mind to whether a Renzella type discount is warranted in your case. However, I am not persuaded that such a discount is justified in circumstances where you offended whilst you were supposed to be on bail. But in imposing the sentence that I have, I have been most mindful of the principle of totality, and I am most conscious of the fact that you have been in gaol since January of this year, and I am also most conscious of the fact that I need to maximise your chances of reforming.
60 I have considered the range of sentence submitted by the Crown in your case, but I am of the view that in the circumstances of your case, it is a little too high. In particular, the fact that you accepted the victim’s decision not to hand over his money and chose to walk away, puts your conduct in a better light than many other instances of this offence. This is not to suggest that your conduct in committing the offence was not serious - of course it was, as I have already made clear. But there are more serious examples that readily come to mind. As I said in discussion at the further plea, it is time to do yourself proud and do your mother proud. As a strong supporter of yours, she deserves better and you know that you can do better. You are a still a young man, but if you decide to return to drug abuse, it is almost inevitable that you will continue to offend and grow old in gaol. It’s really up to you as to which path you choose. But for your sake, for the sake of your family and friends, and for the sake of the community, I do hope that you choose the right path.
61 I give you formal notice that there is a link between your drug abuse and criminal offending, such that if any future offending is caused by drug abuse, the fact that you have chosen to re-offend whilst abusing drugs may be seen by a sentencing judge in the future as an aggravating feature, exposing you to a higher sentence than you might otherwise receive.
62 Could you please stand up Mr MacDonald.
63 I make a forensic sample order and disposal order sought by the Crown – both of these orders are consented to by you. Notwithstanding that you consent to the forensic sample order I should tell you that if you subsequently change your mind an authorised officer may take the sample using reasonable force in the situation where you were to resist the sample being taken.
64 In relation to the offence of attempted armed robbery, you are convicted and sentenced to two years imprisonment and I order that 12 months of this sentence be served cumulatively with the sentence that you are undergoing. I set a new non-parole period of 9 months imprisonment which will commence today, before you become eligible for parole.
65 If not for your plea of guilty, I would have sentenced you to 3 years imprisonment and ordered cumulation of 20 months on the sentence you are presently undergoing and ordered that you serve 12 months commencing today before becoming eligible for parole.
66 Just take a seat for a minute thank you Mr MacDonald.
67 Are there any matters counsel?
68 MR STRANSKY: No Your Honour.
69 MS TODOOR: No Your Honour.
70 HER HONOUR: Yes, thank you, you can remove the prisoner. Yes, and we'll adjourn, thank you.
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