Director of Public Prosecutions v Mackay
[2021] VCC 591
•11 May 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-01407
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARREN MACKAY |
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JUDGE: | HIS HONOUR JUDGE LYON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 May 2021 |
DATE OF SENTENCE: | 11 May 2021 |
CASE MAY BE CITED AS: | DPP v Mackay |
MEDIUM NEUTRAL CITATION: | [2021] VCC 591 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Sonnet | Office of Public Prosecutions |
For the Accused | Mr R. Hammill | De Kretser Law |
HIS HONOUR:
1Darren Stephen Mackay you were found guilty at trial by judge-alone on 9 April 2021 of one charge of agreement for provision of sexual services by a child pursuant to the Sex Work Act 1994, s.7(1) on indictment L11215148A. The maximum penalty for this charge is 15 years' imprisonment (Level 4).
2You have also pleaded guilty to the following offences which carry the following maximum penalties on indictment L11215148B.1.
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CHARGE
MAXIMUM PENALTY
1
Supply a drug of dependence to a child pursuant to s.71B(1) of the Drugs, Poisons and Controlled Substances Act 1981
That carries a maximum penalty of 15 years imprisonment (Level 4)
1000 penalty units
2
Possess a drug of dependence, being a small amount of cannabis for non-trafficking purposes, s.73(1) Drugs, Poisons and Controlled Substances Act 1981
5 penalty units
3You have admitted your prior criminal history. I shall return to that later in these sentencing remarks.
4The facts and basis upon which you were found guilty are set out in my judgment and verdict of 9 April 2021 in relation to indictment L11215148A. There is no need to repeat those facts. The judgment citation is DPP v Mackay [2021] VCC 418.
5The Crown tendered the amended summary of prosecution opening for plea as Exhibit A in relation to indictment ending in L11215148B.1. A summary of your offending is as follows.
6It is agreed that the basis upon which you have pleaded guilty to Charge 1 is 'An offer to supply' rather than the actual supply. The definition of 'supply' in the Act includes an offer to supply.
7At the time of your offending you were 49 years of age. The complainant, Lucy Masel[1] was born in November 2002 and was aged 17 years at the time of the relevant offences. She was under the care of DHHS and MacKillop Family Services.
[1] A pseudonym.
8Your offending in relation to the supply relates to the same child as for the agreement to supply sexual services indictment.
9On 16 January 2020, Lucy Masel had been in contact with you. DHHS issued you with a harbouring notice. You were advised to cease contact with her and you were advised of her age.
10On 26 February 2020, police interrogated Ms Masel's phone and found that you and her had been in frequent contact. Text messages between the two of you found that on 20 and 21 February 2020, that is, after you had been served with a harbouring notice, Ms Masel was texting you asking for a small quantity of ice. You told her that you had, 'One point left, I was saving it for you'.
11The text messages of 20 and 21 February 2020 form part of the evidence of Charge 1. It is a rolled-up charge.
12On 28 February 2020, DHHS obtained a personal safety intervention order from the Geelong Children's Court prohibiting you from behaviour towards, communication with and approaching directly or indirectly the protected person Lucy Masel. The order was served by substituted service on 14 April 2020.
13In mid-May 2020, police again interrogated Ms Masel's phone and found text messages dated 10 May 2020 where you texted Ms Masel and stated that you had a point and a half in your room and you were offering her 'a taste' in the car.
14You were arrested on 20 May 2020. Police found 11 grams of cannabis in your possession. That forms Charge 2.
15Police seized your phone. On analysis, police found further text exchanges on 8, 9 and 17 May 2020 between you and Ms Masel in which Ms Masel was trying to obtain drugs for personal use. On 8 and 9 May 2020, you offered to supply a small amount of methamphetamine to Ms Masel.
16On 17 May 2020 Ms Masel threatened to report you to the police unless you provided her with drugs, stating: 'I could get you breached with these messages and that could be gaol time'.
17You were interviewed by police on the date of your arrest. You generally made no comment answers, but denied that you were served with the intervention order. The text message of 17 May to which I have just referred seems to contradict that.
18You were remanded in custody and you spent 28 days on remand by way of pre-sentence detention. I will reckon that period as already served.
19The matter was listed for judge-alone trial on 23 May 2021 and did not resolve until after I had handed down judgment and verdict on 9 April 2021 on Indictment L11215148A.
20I turn now to consider the objective gravity of and your moral culpability for your offending.
21The objective gravity of the offending can be measured by the following:
a)Certainly in relation to the first indictment of agreement for provision of sexual services by a child, and the second indictment on the charge of supply a drug of dependence to a child, each carry a maximum penalty of 15 years' imprisonment, and I can measure the objective seriousness of the offence by the maximum penalties.
b)It is apparent that when you committed both sets of offences, the complainant was vulnerable in that she was under the care of DHHS. On the first indictment; that is the trial indictment, the offence of agreement for provision of sexual services by a child, involved a degree of persistence over about a three-day period. The offence of supply a drug of dependence to a child involves five separate occasions of offer to supply methylamphetamine over a three-month period and is a rolled-up charge.
c)The relevant offences were committed whilst you were subject to a court order and it is clear that you have prior convictions for drug offences. I note, however, that in each case on the first indictment, it is the 'agreement' for provision of sexual services by a child and in the second indictment, it is 'offer' to supply. There is no evidence that the sexual services were actually provided and the Crown puts the second indictment strictly on the basis that it was an offer to supply and not the actual supply.
d)In assessing the objective circumstances of the offending, I take into account the circumstances of the complainant Ms Masel. At the time of your offending, she was 17 years of age and, as I have said, under the care of DHHS and MacKillop Family Services. It is of some significance that the complainant did not make a police statement and has not furnished a victim impact statement. It is apparent that she is not engaged in the prosecution process and she walked away from the protective intervention order when she turned 18.
e)Nevertheless, the complainant's failure to do so does not in any way ameliorate the gravity of your offending in question. As I noted at your plea hearing, the objective seriousness of your offending must take account of the vulnerability of the complainant and her age and the fact that she must be protected from her juvenile impulses. It is apparent, as I noted the other day, that you ingratiated yourself on her by purporting to accommodate those impulses.
f) The objects of the Sex Work Act seek to protect children from sexual exploitation. Then, the Drugs, Poisons and Controlled Substances Act criminalises all activity in prescribed drugs and carves out a special offence for those adults who seek to supply drugs of dependence to children for their use. In other words, these laws make it clear that there is a special duty or responsibility held by all adults in relation to their activities with children.
22The objective gravity of your offending must ordinarily be met by principles of general deterrence, specific deterrence, just punishment, denunciation and protection of the community. It is apparent that you must be ordered to serve a period of imprisonment for your offending; and indeed, your lawyer submits on your behalf that you accept this to be the case. Nevertheless, it is submitted on your behalf that your moral culpability for this offending is somewhat reduced by the circumstances of the offending.
23In that respect, I note the following. First of all, in relation to the first indictment was a finding of guilt and not a plea of guilt. As a consequence you are not entitled to a plea discount on the first indictment. However, it is noted that there were no witnesses called at the trial and the defence was conducted with economy and pretty much on the evidence as it stood.
24In relation to the supply of a drug of dependence indictment, you have entered a plea of guilty. It was not entered at an early stage of the proceedings, but it was after a separate judge-alone trial date was listed for 23 April and it resolved after my verdict in the first matter on 9 April.
25As a consequence, I accept, as does the prosecution, that your plea does have a utilitarian benefit and that it provides a saving to the community, all the more so for the fact that you entered the plea in order to resolve all your matters in the aftermath of the current pandemic environment, which has placed extraordinary pressure on the criminal justice system.
26On the question of remorse, as I have said, the question of remorse does not arise in relation to the trial matter. It is also apparent that in relation to the drug matter you made a no comment Record of Interview. It is difficult to glean remorse from the matters, notwithstanding your letter to the Court. In any event, I will give you the benefit of the doubt and conclude that you are beginning to understand the wrongfulness of your actions and the need to tread the path, or commence treading the path, of rehabilitation if you are going to stop finding yourself before the Courts.
27I turn now to your personal circumstances.
28You were born in 1970 and you are now 50 years of age. You are the second of two children and both your parents are alive and supportive. Your brother lives in Queensland and you have good regular contact with him.
29You were schooled until aged 14 and you are both numerate and literate.
30You had a long-term relationship with Tammy Black, who provided a character reference to you. You have two adult children together. Both of your children are aware of these matters and supportive of you and I was told that you would have had at least your daughter present in court if the COVID restriction on numbers had not applied. You were fortunate enough though to have your aunt and uncle attend court on your plea.
31You have been abstinent from drugs and alcohol since your release on bail and you now share the best relationship with your family that you have ever had. Previously, drug use had ruined many things in your life, including, you readily admit, your relationship with Tammy.
32Throughout your adult life, you have been employed consistently in different capacities, but your long-time employment was on heavy machinery. You still retain the required endorsements on your licence for this role. It is apparent, however, that you gave up work about seven years ago to become your mother's full-time carer.
33Your mother suffers from advanced and deteriorating emphysema and she is presently in hospital. Upon her release, it has been arranged for your daughter to take over, or at least assist in, the carer duties so that you can do something about returning to full-time work.
34Your bail has been something of an impediment to work in recent times, as it requires a static address, and for the type of work you do you are often required to travel. Your father has a job opportunity with the railways and you are hopeful of securing this position, but, as I noted the other day, the likelihood of that is probably fairly slim given that I will be placing you on a Community Corrections Order for a period of some time.
35Your health has been pretty good over the years, notwithstanding your drug taking. You were stabbed when you were 19 years of age, you were in intensive care for a number of weeks, but you do not have any other medical history.
36You self-reported to Forensicare a number of mental health interventions, which have been largely successful. You are currently unmedicated and stable. Your mental health issues, it appears, have largely evaporated since giving up your drug use and, in fact, the assessment of the Mental Health Advice and Response Service is that I not place a mental health assessment and treatment condition on your CCO given that it did not contribute to your offending and you appear to be relatively symptom-free.
37I refer to your prior criminal record, which dates back to about 1988. You have offences for violence, damage, social disorder, possession of amphetamines, possession of drugs, and driving matters. The most serious of your violence matters is causing injury. It is apparent, however, that whilst you have served four prior Community Corrections Orders or Fine Default Orders, you have never previously served a period of imprisonment.
38Mr Hammill, who ably appeared for you on your plea, submitted that the period of imprisonment served by you had a greatly salient effect upon you. It is significant that you were actually serving a CCO at the time of this offending and it is apparent from the Community Correction Order Assessment Report that your compliance with your previous CCO was less than perfect. You told the CCS that you attributed your poor compliance with the community work condition to having to care for your mother. You expressed motivation to undergo a CCO on this occasion to better equip yourself to minimise the chance of relapse and you indicated that you would have no issue managing your commitments to care for your mother on this CCO when your daughter moves in.
39Let me make it clear, do not come back before me in a few months' time and say, 'My daughter didn't appear, and so I haven't been able to do the community work'. If you do that next time, you will leave court through that door there [into custody].
40I recognise that during the course of your incarceration on remand it was during the time of the lockdown in Victorian Correctional Services. The immediate effect of that was a reduction or suspension of vocational and personal improvement courses, a restriction on your ability to move around the prison and a severe reduction in work and visits.
41The more insidious effect on you, I was told, was the stress and isolation, the fear that the pandemic would penetrate into the prison and then, for your first time in prison, isolation was used as a strategy to limit close contact. I understand you found imprisonment a very distressing experience.
42I will take all of that into account in mitigating the sentence I impose upon you.
43In the course of his submissions before me, Mr Hammill submitted that your sentence should be mitigated by the following factors. First of all, that although you have something of a now mounting criminal history, it is relatively limited and you have not previously served a period of imprisonment.
44Secondly, Mr Hammill submitted that, as I have just said, the period of imprisonment you did serve had a salient effect on you. Principally Mr Hammill submitted that since you were released from custody, in the eight months since you were released from custody, you have completed the CCO, you have undertaken some counselling, you have an offer of work from your father at the railways, and you have developed for the first time in many years a mature relationship with your adult children. This has come about significantly because you have made efforts to give up all drugs and alcohol abuse.
45In this respect, I refer particularly to the character references of Eileen MacKay and of Tammy Black. It is apparent, (although I doubt you were remorseful at the time of your arrest) that they do speak of your remorse and of your awareness of the pain you have caused to others.
46The plea undertaken by Mr Hammill was followed with your letter of apology, the email from your previous Correction officer Tulini Welavoti, and medical records from Eastern Health, Main Street Medical, the Mental Health assessment and the Labuan Square Medical Centre. Ultimately Mr Hammill submitted that whilst you recognised that your offending must be met by a period of imprisonment, he submitted that a combination sentence of imprisonment with a Community Corrections Order was open on the whole of the charges, except for the possession of a small amount of cannabis, and that the 28 days that you have already served should be sufficient. That is that time served should be enough.
47Mr Sonnet, who ably appeared on behalf of the prosecution, generally agreed that a combination sentence of imprisonment over the whole of your offending was within range but submitted that it was a matter for the court as to whether I required you to serve more time.
48After giving the matter careful consideration, I have decided that you do not have to serve more time. I propose that you be sentenced to a period of imprisonment in combination with a CCO but that the period of imprisonment you be sentenced to is 28 days, that is, the time you have already served. I do so because it seems to me you have made some positive improvements to your life since your release on bail for these matters and it is therefore open to me to form a favourable view of your rehabilitative prospects.
49Whilst it is apparent that the sentencing purposes of general deterrence, specific deterrence and denunciation must all be engaged in in the sentencing process, it is apparent to me that society will do better if we can achieve your rehabilitation on all of these offences and put you on a road different from that you have engaged in for the last 15 years.
50Mr Mackay, due to your finding of guilt on the offence of agreeing to the provision of sexual services by a child, a Class 2 offence under the Act, you will automatically be required to report under the Sexual Offenders Registration Act for a period of eight years. I will return to that later in these sentencing remarks.
51You have already signed a consent form in relation to the assessment, or you have given verbal consent, but there are a number of matters that I must put to you in any event.
52Mr Mackay, I am proposing a community corrections order for a period of 15 months. Do you understand that? All right, I am going to have to get you to audibly answer yes or no to each.
53OFFENDER: Oh sorry, yes.
54HIS HONOUR: Now, there are several general conditions which attach to every order. I know these have been explained to you, but part of my responsibility is to ensure that I am satisfied you understand them, all right?
55OFFENDER: Okay.
56HIS HONOUR: The first is you must not commit, whether in or outside Victoria during the period of the order, any offence punishable by imprisonment whether imprisonment is actually imposed or not, do you understand that?
57OFFENDER: I do.
58HIS HONOUR: You must comply with any obligation or requirement prescribed by the regulations. That is you must comply with the obligations and requirements imposed on you by Community Corrections Services, do you understand that?
59OFFENDER: Yes, I do.
60HIS HONOUR: Thank you. You must report to and receive visits from the Office of Corrections during the period of the order, do you understand that?
61OFFENDER: Yes, I do.
62HIS HONOUR: You must report to the Community Corrections Centre specified in the order, which is Geelong within two working days after the order comes into force, so before 4 pm on 13 May 2021.
63OFFENDER: Yes, I do ‑ ‑ ‑
64HIS HONOUR: Yes. You must notify the Office of Corrections of any change of address or employment within two clear working days after the change, do you understand that?
65OFFENDER: I do.
66HIS HONOUR: All right. You must not leave Victoria except with the permission either generally or in relation to a particular case of the Office of Corrections. You understand that?
67OFFENDER: Yes.
68HIS HONOUR: With the sexual offences registration there is enormous restrictions on your ability to travel in any event, so that is a separate issue. But concentrating on this, you must comply with any direction given by the Secretary that is necessary for the Office of Corrections to ensure that you comply with the orders and such a direction may be given orally or in writing. Do you understand both aspects of that?
69OFFENDER: Yes, I do.
70HIS HONOUR: Thank you. Mr Mackay, I propose that in addition to the general conditions the following special conditions or specific conditions be imposed. First, that you undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager. Do you understand that?
71OFFENDER: Yes, I do.
72HIS HONOUR: All right. You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the regional manager. Do you understand that?
73OFFENDER: Yes, I do.
74HIS HONOUR: All right. I am deleting the mental health requirement because of the finding there.
75You must perform 60 hours of unpaid community work over a period of 15 months as directed by the regional manager. Do you understand that?
76OFFENDER: Yes, I do.
77HIS HONOUR: Mr Mackay, I have decided that all hours of treatment and rehabilitation satisfactorily undertaken on the drug and alcohol programs, and I am also going to impose an offender behaviour program, all hours of treatment and rehabilitation satisfactorily undertaken are to be offset against the hours of community paid work. Do you understand that?
78OFFENDER: Yes.
79HIS HONOUR: And, finally, you must participate in programs and/or courses that address factors relating to your offender behaviour as directed by the regional manager. Do you understand that?
80OFFENDER: Yes.
81HIS HONOUR: All right. Mr Mackay, do you consent to the order for a community corrections order?
82OFFENDER: Yes, I do.
83HIS HONOUR: In the circumstances then, the order of the court will be that on Indictment L11215148A on Charge 1 you are convicted and sentenced to 28 days' imprisonment. I direct that all sentences imposed in this case be served concurrently. The total effective sentence is 28 days' imprisonment.
84I further declare that the period that you have been in custody in relation to these offences, namely 28 days, be reckoned as a period of imprisonment already served under this sentence, which is to be deducted administratively.
85On Charge 1, in addition, you are convicted and ordered to serve a community corrections order for a period of 15 months. The order commences today and ends on 10 August 2022. You must attend at the Geelong Community Correctional Services by 13 May 2021 at 4 pm. In addition to the mandatory terms, you must perform 60 hours unpaid community work over a period of 15 months as directed by the regional manager. I order that all hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
86You are to undergo supervision from the Office of Corrections for a period of 15 months. You must undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the regional manager. You must participate in programs.
87You must participate in all programs and courses that address factors relating to your offender behaviour as directed by the regional manager. Then pursuant to s.34 of the Sex Offenders Registration Act 2004, the length of the reporting period is 8 years.
88We will have the documents drawn up, Mr Mackay, then once you have signed them you will be able to go. Mr Sonnett will take care of the Sex Offenders Registration paperwork. The 6AAA on the drug matter is but for the plea of guilty I would have imposed a sentence of four months' imprisonment.
89The disposal order is granted. I have signed that in chambers.
90MR SONNET: And I may have missed it, Your Honour, just the penalty for possess cannabis.
91On the charge of possess cannabis, you are fined $100 without conviction.
92The same penalty, that is the period of 28 days' imprisonment, is served by way of an aggregate sentence across the two indictments, served concurrently. I declare the period of 28 days already served. The CCO applies as well.
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