Director of Public Prosecutions v MacFarlane
[2018] VCC 182
•23 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MILDURA CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-01793
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DYLAN MACFARLANE |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 4 December 2017, 12 February 2018 | |
DATE OF SENTENCE: | 23 February 2018 | |
CASE MAY BE CITED AS: | DPP v MacFarlane | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 182 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – SENTENCING
Armed robbery – youthful offender – significant prior criminal history – intellectual disability and acquired brain injury – cognitive impairment – significant history of abuse and dysfunctional family history – moderation of general deterrence and specific deterrence – term of imprisonment imposed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D O’Doherty (Plea – day 1) | John Cain, Solicitor for Public Prosecutions |
| Ms S Pillai | ||
| For the Accused | Mr T Lavery | Stuthridge Legal |
HER HONOUR:
Dylan MacFarlane, you have pleaded guilty before me to one charge of armed robbery. The offence occurred at the Bottle’O liquor store in Swan Hill on 23 April 2017.
This offence is a serious one and that is reflected in the maximum penalty that is prescribed by Parliament; namely, 25 years’ imprisonment.
In addition, you admitted your criminal history. You do have a lengthy prior criminal history. It consists of some 15 pages detailing 20 court appearances which span the period from 19 December 2007 until 24 November 2016. Predominantly, that relates to offending when you were a child and you were the subject of the Children’s Court jurisdiction.
You have prior appearances at court for relevant charges, namely attempted robbery, two charges in 2009, for which you were dealt with without conviction and placed on a Youth Supervision Order for ten months; a robbery matter that was dealt with on 20 January 2011, together with other charges for which you were convicted and ordered to be detained for six months in a Youth Justice Centre.
On 25 October 2011, you were dealt with in respect to three charges of robbery, and other charges involving offences against the person and other offences, and you were convicted and ordered to be detained in a Youth Justice Centre for a total of eight months.
On 25 September 2013, you were dealt with in respect to three armed robberies, attempted armed robbery and other charges for which you were convicted and detained in a Youth Justice Centre for a period of 12 months.
As an adult, you have been convicted of a variety of offences, and over the years you have received a variety of dispositions.
On 12 October 2015 you were dealt with in respect to multiple driving offences and an unlawful assault charge at the Swan Hill Magistrates' Court. On that occasion, you were convicted and placed on a Community Correction Order for 15 months with conditions that you undergo treatment and rehabilitation including testing for drug abuse or dependency and alcohol abuse and dependency; mental health assessment; offending behaviour programs and supervision.
I will turn now to the circumstances of the armed robbery on 22 April 2017. It concerns you arming yourself with a machete and attempting to disguise yourself by placing a T‑shirt around your head. You then entered the Bottl e’O liquor store at about 8.50 pm. Mr Robertson, the store attendant, was in the process of closing up. He had just walked out of the store to padlock a large outdoor freezer.
You then walked directly behind the store counter and attempted to open the register. Unable to do so, you turned back towards Mr Robertson and requested that he come and open the register. You were brandishing the machete and said to him, “Give me all your money.” He complied with your request and opened the register and then left the store. As he was halfway across the driveway, you yelled out for him to come back, saying, “Come back here buddy and take the money out of the till for me.”
He did so and helped you take money out of the register, emptying the register of all its notes. You then demanded that he remove all the coins as well. He picked up the coin tray and poured it into a green shopping bag that you were holding. He told you that that was all the money in the store. You then grabbed the entire register, ripped the plastic containers out of it and threw them onto the counter before exiting the store. A total of $2,262.60 was stolen.
On 27 April 2017, you handed yourself into the police and you were arrested. When interviewed you made full admissions to robbing the store whilst being armed with a machete and acting under the influence of ice. You said that you had spent some of the money on buying drugs as well as some alcohol. You produced the machete used during the armed robbery to the police on the following day.
Mr McFarlane, your crime has impacted greatly upon Mr Robertson, and I have had regard to his Victim Impact Statement. He knew what you wanted at the time of the armed robbery and did not want to get in your way. When he saw that you were holding a large machete, he was worried for his life. He then did what was asked and then stood back. When he got home he was ruminating about what happened, and he is now very guarded at work, particularly around closing time. It brings up memories of how easy it was for you to come through and he is a little guarded when doing this activity.
You have been in custody since 12 May 2017. Whilst in custody, you were sentenced on 28 September 2017 at the Mildura Magistrates’ Court to an aggregate sentence of six months’ imprisonment to be followed by an 18 month Community Correction Order, and a total of 139 days pre‑sentence detention was declared.
The sentence imposed at Mildura Magistrates' Court related to a large consolidation of matters involving three informants. The first informant, Informant Gordon, relates to offending committed on 11 May 2017 and included charges of aggravated burglary, commit indictable offence whilst on bail and make threat to kill. The second informant, Barry, related to the commission of offences between 11 May 2017 and 12 May 2017, and those offences included attempted theft of a motor vehicle (x 7) and theft (x 2). The third informant, Kelly, related to offending on 23 May 2017, and included charges of use threatening words, threaten security or good order, and assault emergency worker.
I have had regard to the brief statement of the circumstances of those offences. The sentence is relevant insofar as there is a need for me to have regard to the principles of totality when considering what is just punishment in terms of the offending the subject of this indictment.
I consider that this is a serious example of this serious sort of offending. There are a number of aggravating features. I consider that you did plan the armed robbery. You armed yourself with a machete and used a T-shirt in an attempt to disguise your facial features. You targeted a liquor store late at night when the lone attendant was closing up and vulnerable. There were no other patrons or employees present. You brandished the machete at the 25 year old male store attendant in order to influence him to cooperate with you to provide you with the money from the till, and at the time you were acting under the influence of ice. Your behaviour was most disturbing.
I have noted in your favour that you did voluntarily hand yourself in to police. You were cooperative with them and made full admissions in relation to the offending.
I have had regard to the reports of Lindsay Vowels, a neuropsychologist, whose report dated 16 August 2013 was tendered, and the report of Warren Simmons, Psychologist, whose report dated 20 September 2017 was also tendered.
You have a documented intellectual impairment with significant cognitive disabilities. You have been subjected to several traumatic episodes in the past including head injuries from car accidents in 2011 and 2012, and other assaults over the years. When you were two years of age you consumed some caustic soda and suffered severe burns to your oesophagus and trachea, and you have required numerous periods of hospitalisation to stretch your oesophagus and trachea. There is also a possibility you may have suffered some hypoxic brain damage as a consequence of that incident.
You have had a history of significant alcohol and drug abuse commencing from an early age. You began smoking cannabis and using ICE intravenously when you were only aged 13 and also experimented with heroin when you were 15.
Mr Vowels confirms that you have an Acquired Brain Injury with moderate amnesic syndrome and a severe dysexecutive syndrome. These diagnoses would be in addition to a longstanding intellectual disability which may or may not pre-date the ingestion of caustic soda. He assessed your intellectual ability to be in the extremely low to borderline range. He states that a level of intellectual disability has been present before you turned 18, and therefore you would be eligible for registration with DHS for Disability Services.
You are now aged 22 and you were aged 21 at the time of the offending. You are relatively youthful, and in terms of sentencing, rehabilitation is a significant factor. However, given the seriousness of your offending, that to a degree must take a back seat to general deterrence, specific deterrence and denunciation, and I will be saying a bit more about that later.
You were born and raised in Swan Hill. At the age of 14 you were taken into the care of the Department of Health and Human Services where you remained until age 18. During the latter part of that period, you spent time in various Youth Justice facilities where you completed Year 11 and 12 VCAL studies whilst in Youth Justice facilities. In custody you have undertaken multiple short courses in IT and hospitality.
I noted that you have had a very difficult childhood. You suffered physical abuse at the hands of your parents. They separated when you were very young. Your mother was unable to control your behaviour. She was the victim of domestic abuse, which you witnessed as a young child, at the hands of your father. He played a limited role in your care, but there were times when you were cared for by him and your stepmother. You suffered physical abuse from both of them. They used physical punishment in an endeavour to try and control your behaviour.
From a young age it appears your behaviour has been problematic.
27 Over the years you have lived on the streets unsupervised, notwithstanding that you were under the care of the DHHS. Your contact with the criminal justice system reflects to a large extent your lifestyle, chronic drug and alcohol abuse problems, and intellectual impairment and cognitive impairment.
I noted that you now have little contact with your extended family, and there was no one was in court to support you during the plea hearings.
Your older brother, Jack, died in 2010 at the age of 16. His death was listed as a suicide but you hold a strong belief he was murdered. You had a very close relationship with him and his death has had a significant impact upon you.
I have taken into account the effects of your traumatic background. Your background of significant deprivation has not diminished over time nor with repeated offending,[1] and has been given full weight in formulating the sentence I am about to impose.
[1]Bugmy v The Queen [2013] HCA 37.
When you were interviewed by Warren Simmons, he noted that you expressed remorse for your actions to him, and you told him that you were clearly aware that your behaviour may have had a negative effect on the individual involved. He said that you appeared to regret this. You said to him you believed that your substance use impacted on your decision-making at the time, but you did not use this as an excuse for your behaviour and accepted responsibility for what you had done.[2]
[2]Page 5 of 7 Warren Simmons, psychologist, report dated 20 September 2017.
That was reflected in the full admissions you made at the time you were interviewed by police. You told police that the offending occurred in the context of you having no money, there having been a recent breakdown in your long term intimate relationship with Stacey Walker, and your being asked to leave home. You told Police that you were upset, not sleeping, and had resorted to using methamphetamines. Because of the general turmoil in your life, you were not thinking clearly and you needed money for the drugs, and that is what motivated your offending.
This history is supported by what is recorded by Dr Michael Moynihan, who is your general practitioner from Swan Hill Primary Health Medical Centre. On the day that you surrendered yourself to the police, he recommended an admission to the local hospital.
In his referral letter dated 27 April 2017, he confirmed that you suffered from Adult Attention Disorder, diagnosed by Dr Robert Proctor, but that you had discontinued treatment in the last six months or so. He also noted that you had a diagnosis of schizophrenia in the past, although he queried whether that was drug-induced psychosis. He noted you were taking antipsychotics, and they may have been controlling the situation.
There is no other psychiatric material before the court about your current status, and I am not clear whether the history and diagnosis of schizophrenia is a current one, but nonetheless I have taken that into account.
Dr Moynihan records that things got off track for you since you and your partner, Stacey, had lost your unborn child last year. You had been doing well until then. You were separated and you were not coping. You could not sleep and you became a little paranoid. You were using crystal methamphetamine. You told him you felt you needed an admission. You were a little afraid of yourself. He also documented that you have not got over the death of your brother some seven years earlier. He said you were prescribed Seroquel, an antipsychotic, and Valium.
All of that information concerning your personal circumstances and background provides the proper context to your offending, and explains why it was that you were using methylamphetamines and felt compelled to commit this offence. It does not, however, excuse your offending.
Given your particular circumstances, that is your acquired brain injury and intellectual disability, and disadvantaged background, I have moderated the need to emphasise both general and specific deterrence, and reduced your moral culpability to an extent.
However, despite your documented conditions, you do well understand the nature and gravity of the crime, and you did so at the time you committed it. This armed robbery was not the product of irrational impulse on your part, and is not, given your criminal record, uncharacteristic behaviour. It is also a demonstration of your continuing attitude of disobedience to the law, and thus requires a degree of punishment to deter you and others like you from committing similar offences.
I reject Mr Lavery’s submission that because of the combination of factors personal to you, namely your acquired brain injury and documented cognitive impairment, that the need to emphasise general deterrence is all but extinguished in this case.
In assessing your prospects for rehabilitation I do remain optimistically guarded. There are some positive features currently. Since you have been on remand you have been able to complete programs on depression, grief and loss, and drugs and alcohol. You have been working in the kitchen and have undertaken grounds maintenance and worked in the visitors’ canteen.
Currently you are at Ararat Prison where you are classified as a protected prisoner. You found it difficult to cope in jail initially because of difficulties with other prisoners. You felt you were being singled out and life was made difficult for you. You have, however, apparently settled well at Ararat Prison.
Your mental health has settled in jail. On the last occasion you told the court that you are now prescribed a lower dose of Seroquel, and that you are seeing a psychiatrist every month or two.
Mr Lavery informed the court that your relationship with Stacey Lee has recently resumed, and she remains in regular contact. She remains a stable feature in your life. She has indicated her willingness to extend permission for you to return to live with her at home upon your eventual release. She has a child, Bailey, aged four, who you perceive as being his father.
I have already spoken about your long-term history of drug and alcohol abuse. You told Mr Simmons in the last eleven months prior to your incarceration, you were drinking approximately twice a month, acknowledging that this was always to excess, and you were also using drugs to manage your feelings.
In the past there was some treatment for alcohol and drug problems with the Youth Support Advisory Service, and whilst on your most recent Community Correction Order, you completed drug and alcohol counselling with a local service in Swan Hill.
It is important that you are willing to undertake further treatment and counselling.
I noted that you were bailed following your arrest on this charge and the matter was the subject of a filing hearing on 23 May 2017. It eventually resolved at a committal mention on 5 September 2017, with the matter then proceeding as a straight hand-up brief.
It is accepted by the prosecution that you entered a plea of guilty at the earliest opportunity, and I have taken that into account.
The plea has real utility. Through that plea, you have saved the cost and unnecessary expense of a contested committal and trial. Importantly in this case, you have spared the victim the trauma of having to come to Court to give evidence. You have facilitated justice and you are entitled to a sentencing discount.
I have had regard to your high level of cooperation with the police, the fact that you voluntarily surrendered yourself, and produced the machete used at the time of the commission of the offence, and that you made full admissions.
I am satisfied, having regard to that behaviour, that you are genuinely remorseful. That is also reflected in the frank discussion that you had with Mr Simmons at the time he interviewed you, where you said that you fully understood what you did was wrong and acknowledged that the victim would have suffered harm.
You are a relatively youthful person, and as I said before, your rehabilitation is an important sentencing factor. I have had regard to the features particular to you, and I have accepted that there is a realistic connection between your conditions and the offending, and have sensibly moderated the application of the principles of both specific and general deterrence. However, all of those conditions also mean that there is a need to provide for the protection of the community.
In the absence of total abstinence from drugs and alcohol abuse, you do remain a real risk of reoffending for the future. Strategies will have to be put in place upon your release to ensure that you are monitored to ensure that you remain drug-free and also to support you in your commitment to undertake further counselling and treatment in respect to your chronic longstanding alcohol and drug problems, and also other psychological and psychiatric problems.
Your time spent in custody has been productive in terms of regularising your mental health situation. You explained that you are now on a lower dose of Seroquel and you have been able to make a contribution by working in the prison. Currently there are no real concerns about your vulnerability whilst in prison, and this is not a situation where it was suggested that imprisonment is likely to cause further deterioration in your mental health condition.
This is very serious offending involving as it does the use of the machete in the context of an armed robbery against a vulnerable and lone store attendant. Given your history and antecedents I have no alternative but to impose an actual term of imprisonment to be served immediately. Nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the requirements of just punishment.
A Community Correction Order in combination with the maximum sentence of imprisonment permitted, if a CCO is to be ordered, that is one year, would not satisfy the requirements of just punishment in this case.
I will now proceed to sentence you in respect to the one charge of armed robbery. Could you please stand, Mr MacFarlane?
In respect to the charge of armed robbery, you will be convicted and sentenced to three years’ imprisonment, and I fix a non-parole period of 18 months.
I declare 107 days pre‑sentence detention and direct that that be recorded in the records of the Court.
I make the following declaration. Pursuant to s.6AAA, but for your plea of guilty, I would have imposed a term of imprisonment of five years to serve three years.
I will make a notation that all the materials that have been provided in the plea hearing will be provided to Correctional authorities, so that they may give consideration to the appropriate supports that need to be put in place prior to your release in the community. And that completes my sentencing remarks.
I think that covers everything? There were not any ancillary orders?
MS PILLAI: No, Your Honour.
HER HONOUR: No, all right. So thank you both for your attendance and your attention to this matter. Mr MacFarlane can be taken back downstairs. Thank you. And we can adjourn.
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