Director of Public Prosecutions v Mackeroy (a pseudonym)

[2018] VCC 460

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

Robert Mackeroy (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 April 2018
CASE MAY BE CITED AS:	DPP v Mackeroy (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 460

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Martin
For the Accused	Mr S. Tovey

Pages 1 - 8

 

 

HER HONOUR: 

1Robert Mackeroy,[1] you have pleaded guilty before me to one charge of breaching a supervision order imposed under the Serious Sex Offenders (Detention and Supervision) Act 2009. This order was made on 3 March 2017. The facts underlying the offending are as follows.

[1] Robert Mackeroy is a pseudonym.

2You had been transitioned out of Corella Place and into a residence in West Footscray, the transition beginning in May 2017 and you being fully transitioned by 15 December 2017.  Things thereafter progressed very well.    The reports that I have received indicated firstly that you were provided with a raft of supportive services in which you were well-engaged.  You were exploring aspects to your personality and your behaviour in an open way which had not previously been achieved by you. 

3Most importantly, you had reconnected with your family, in particular your brother from whom you had been long estranged.  This was extremely important because a pattern of contact was set up, giving you the sort of social outlet that had been denied to you in the past.  You were spending a great deal of regular time with your family, with your nieces and with your mother who came to visit you at the premises.

4Additionally, your progress was marked by your capacity to appropriately deal with issues which arose, which in the past and in the experience of this court, would have sent you off into some sort of downward spiral. 

5First, there was the end of a relationship which was important to you.  Reports indicated you reacted to this in a calm and appropriate way, fully understanding the reasons for your then girlfriend ending the relationship and showing some empathy and insight as to those reasons.  The end of that relationship which as I have said was a significant one did not see a departure from the positive steps that you were making in the community.

6I should add that this was the most extensive and continuous period of time that you had had in the community for almost 15 years. 

7Secondly, you undertook a day of work with your brother which your counsel described as one of the proudest days of your life.  You reported it involved working as a furniture removalist.  You reported this activity to your case worker.  You had failed to get clearance for working in this way.  Ultimately, a charge was laid in respect of it due to your own disclosure and the Adult Parole Board ultimately ruled this was not appropriate or suitable employment for you to undertake.

8Again, rather than spiralling into a cycle of anger and self-destruction, you appeared to calmly accept that decision and instead turned to retraining with AIMS and with a job agency more able to find appropriate work for you.  You were undertaking retraining in heavy machinery use.  You were taking lessons for your licence.  All in all, your life was going extremely well.

9Then incredibly unfortunately, things went awry.  I should add that in this time, you undertook five random drug screens all of which were negative for the use of drugs.  Again, given that one of the major problems for a long time with your residence in Corella Place was a continued use of Kronic, a synthetic form of cannabis, and a continued defiance by you as to use of that drug, saying you wanted to keep using it and you were not going to do anything about it, you had turned a corner there, it seemed as well.

10On 23 March 2018, your case manager Kathleen Baxter telephoned you, directing you to go to the St Albans Dorevitch Pathology office to provide a sample of urine.  You said you understood and you would attend at 1.30.  Then, Ms Baxter at 1.54 received a voicemail from you asking her to call you and when she did so five minutes later, you talked to her in a panicked voice saying you could not attend because you felt dizzy and sick saying "something is really wrong".  You refused the assistance of an ambulance and you said you thought you were having a panic attack. 

11Due to past experience, in relation to similar behaviour when you did not want to go for drug testing, Ms Baxter asked you if you had used drugs and after some initial denial, you stated, "Okay, okay, I used."  You admitted that on the evening of 19 March and morning of 20 March 2018, you intravenously used ice which you had procured through an acquaintance.  You told Ms Baxter that as you had not been sent off for drug analysis for some time, you thought you “could get away with it.”  You said it was the first time you had used any drugs since residing in the community and that it was the first time you had used ice. 

12You said that you had been having some discussion and disclosures with the doctor on 19 March which may have had an impact on you and contributed to your drug use but overall said you did not want to make excuses.  You said you knew you should have spoken to someone about it prior to using and that you were "shattered" that you had not done so; that you now stood to lose everything.

13You went to Pathology that day.  The test results were positive for amphetamine and were indicative of you taking a fairly hefty dose of it.  Interestingly, there was a note from your case worker, Ms Baxter, where she reported that at the time she spoke to you, you were sitting at a bus stop on your way to see your brother's because you wanted to tell him that you had "fucked up".  Ms Baxter encouraged you both to go to Dorevitch Pathology and then to visit your brother and you did both these things.

14Eventually of course, you were apprehended.  You were returned to Corella Place.  Things did not go too well there.  I am not going to go into that.  To some extent, it is understandable but ultimately, eventually, police attended.  A record of interview was conducted, that record of interview being remarkable, in my view, by your failure to blame anyone.  You have been a great blamer of others in the past.  You took full responsibility for your actions and you berated for yourself for your stupidity.  You were then lodged in the cells at the Melbourne Custody Centre and have been there for three days.

15This is your sixth breach of the supervision order.  The history of breaches is contained in earlier reports.  Always when a court has had to deal with you - primarily that court has been presided over by myself and we had a discussion about it during this plea hearing - the great problem is, Mr Mackeroy, we go back to index offending which was a violent rape albeit that it occurred in February 2004. 

16We have had many discussions about the fact that that is always going to underly any infractions by you.  By that I mean any time you muck up, everyone is going to go back to the offending that led you into this in the first place.

17It has been submitted that I should deal with you - and that is by the prosecution - by way of a sentence of imprisonment to be immediately served and no one could argue with that submission.  Indeed, defence counsel Mr Tovey did not seek to do that.  I agree with that submission. 

18It was submitted by the prosecution that specific deterrence - that is punishment that makes you reflect on what you did is the most important sentencing principle the court has to deal with and I agree with that too.  However, having dealt with you via your supervision order for a number of years now, Mr Mackeroy, I do have to say that your progress in the community this time was remarkable.  You have done a great deal of work or had done a great deal of work to get where you were and the reports, generally speaking, although they were not uniformly filled with praise were generally very hopeful and reflected a great deal of satisfaction by those dealing with you with your progress. 

19You spoke very openly - some might say too openly - in court today.  The general tenor of what you had to say to me, however, did involve you taking responsibility for your actions and did involve a real appreciation of what you have lost.  It also revealed an acceptance that I need to deal with you by way of a term of imprisonment. 

20I am very anxious that any sentence of imprisonment does not undermine the progress you have made.  It is crucial that you remain hopeful.  Your counsel made a very effective submission when he said to me that gaol is not hard for you; it is Corella Place that is hard for you.  Again, having dealt with you for some years, my observation is that that is an entirely true submission.  The real punishment for you is that you are back in Corella Place which you find so difficult and this is entirely as a result of your offending.

21Your family are apparently angry with you and that is understandable but they remain supportive. 

22In sentencing you, I take into account your plea of guilty which I accept is a real expression of remorse and perhaps more importantly, a recognition by you that you have effectively shot yourself in the foot and that you had a lot to lose and that you are appreciative of what you have lost.  And that is extremely important for someone like you, Mr Mackeroy, because as you know, for a very long time, we were simply dealing with you coming to court, rallying against Corella Place and how you hated it until finally you pulled up your socks, got moving and accepted that you were responsible for your own progress out of Corella Place.

23I am satisfied that you remain a person with rehabilitative prospects.  I am anxious that they be supported in every way because ultimately that is the aim of the legislation that keeps you there pursuant to the Serious Sex Offenders legislation, the aim being to progress you to ultimate permanent settlement within the community.  As I remarked during the plea, it would be so easy to sentence you in a way that puts an end to all your hopes and means that basically you are going to spend the rest of your life either in gaol or Corella Place.

24I hope in these sentencing remarks I have fully set out the competing principles to which I must pay regard.  I take into account very much the progress that you have made.  I take into account your assumption of responsibility for your current predicament.  I take into account the serious index offending, the need always to have the protection of the community in mind.  I also take into account the particular concern that the drug of choice - and it was very much your choice on this occasion - was methamphetamine or ice. 

25This is a drug notoriously known to promote violence in people who use it.  I accept it was the first time you used it and I accept that you hated it.  The aim was it was meant to relax you and somehow add a gloss to the already very satisfactory life you were leading.  It had the opposite effect.  It kept you up for a couple of days.  You hated it.  The mode of using that - is injection - came with the person who provided it to you, an associate of yours.

26I regard those concerns around ice as legitimate but I do not regard you as a person who is seeking to use ice.  You have got more work to do about the thought processes that led you to wanting to use drugs at all when you were doing so well and in such a good environment.  And I am sure that will be explored once you are in fact back in Corella Place.  All I can do, Mr Mackeroy, is sentence you and urge you that once you are out of gaol and back in Corella Place you do all the things you did last time at Corella Place that got you out there.

27If you come into contact with staff who seem uncaring, to use parlance, you cannot let it get to you.  There will be people there who do care and you have got to be proactive and find them.  You have to keep being your own best advocate in there.  You cannot necessarily rely on other people to do it for you.  You have to keep working.  You do know that when you come back to court those professionals that have been working with you are anxious to see you back where you were before; that you have got a lot of people wanting you to succeed including this court. 

28So Corella Place, I know, is going to be the hard part and the real punishment for you.  You cannot let it get on top of you.  You got yourself out of there before.  You can undoubtedly do it again.  And what you have got this time is a bit of proven track record of how you can operate in the community.  So you spoke to me very frankly on the plea about your concern.  You need to have hope.  You should have hope.  You have created your own hope.  You got yourself out of Corella Place.  You did really well until you blew it but at least you understand that you blew it and nobody else.

29In all the circumstances, I therefore sentence you as follows:

30On the charge of breach of a supervision order, you are sentenced to two months' imprisonment.  I declare that four days of that sentence has already been served by way of pre-sentence detention which includes today.  All right?  

31And the good thing is that that means by the time I see you in May for the review, you will be nearly ready to come out.  All right?  And we can have a good discussion then and I will be wanting to have a good discussion then about what is set up for you at Corella Place once you get back there.  All right?

32OFFENDER:  Yep.

33HER HONOUR:  Thanks Mr Mackeroy.

34OFFENDER:  Thank you.

35HER HONOUR:  And again, Mr Tovey, thank you very much.

36MR TOVEY:  As Your Honour pleases.

37HER HONOUR:  And I thank Madam Prosecutor - I thank everybody who has attended.  Thank you very much.

38MS MARTIN:  Could I just remind Your Honour of the 6AAA requirements?

39HER HONOUR:  Of course.  Pursuant to 6AAA, had you not pleaded guilty, I would have sentenced you to a term of imprisonment of six months.

40MS MARTIN:  As Your Honour pleases.

41HER HONOUR:  Just to make it clearer, I do not regard your use of methamphetamine as an indication that you are turning your mind to using heavier drugs than you have used in the past.  I regard it as an indication of a sort of mindset by you that at certain times drug use is appropriate.  And if there could ever have been a greater example of how it is not appropriate, it is these particular circumstances and I am satisfied that you understand that.  I do not regard you as a person seeking to go out and become an ice addict.  You have just got to get your head right, all right?  Thank you, I have gone on enough.  Thank you very much.

42MR TOVEY:  As Your Honour pleases.

43HER HONOUR:  All right.  I will stand down and we will resume the trial.

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