Director of Public Prosecutions v Macras

[2019] VCC 2245

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01509

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEPHEN MACRAS

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 November 2019
DATE OF SENTENCE:	20 December 2019
CASE MAY BE CITED AS:	DPP v Macras
MEDIUM NEUTRAL CITATION:	[2019] VCC 2245

REASONS FOR SENTENCE
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Subject:  Stalking, bomb threat
Sentence:  187 days' time served, 3 year community correction order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. J. Livitsanos	Office of Public Prosecutions
For the Accused	Mr. N. Brown

HIS HONOUR: 

1After a sentencing indication at which I indicated that I would not sentence you to a term of immediate custody you, Stephen Macras, pleaded guilty to three charges contained in indictment K10981806.1 and one related summary charge.  The prosecution opposed the sentencing indication and submitted that your offending was too serious for a sentence other than that of immediate imprisonment and the fixing of a non-parole period.

2You have pleaded guilty to one charge of stalking for which the maximum penalty is imprisonment for 10 years, and one charge of making a bomb hoax for which the maximum penalty is imprisonment for five years and/or a fine of 600 penalty units or both, and one charge of assaulting an emergency worker on duty for which the maximum penalty is imprisonment for five years.  The related summary charge is using a prohibited weapon without exemption for which the maximum penalty is imprisonment for two years and/or a fine of 240 penalty units.

3You have pleaded guilty to the charges, and that is to your credit.  By your pleas of guilty you have saved the time and costs of a trial.  By your pleas of guilty you have admitted responsibility for your crimes, and you have facilitated the administration of justice. 

4Here, the charges proceeded to this court by way of a hand up brief and whilst you pleaded guilty after a sentencing indication hearing and not at the earliest possible time, I nonetheless treat you as having pleaded guilty at an early time before trial.  Because you have pleaded guilty the law provides that you are entitled to a reduction in sentence, and this will be reflected in the sentence that I will shortly pass.  I accept you are remorseful for your offending.

5The circumstances of your offending are described in a Summary of Prosecution Opening in writing dated 31 October 2019 which was prepared for the purposes of the Sentencing Indication hearing.  I have marked that document as Exhibit A on the plea, and it was read to the court in a summary way by the prosecutor Mr Livitsanos. 

6Your counsel Mr Nelson Brown agreed that the prosecution opening was accurate and formed a proper factual basis upon which I can pass sentence upon you.  In those circumstances it is not necessary that I here repeat that which is contained in the prosecution summary except in an abbreviated way.  These sentencing remarks should however be treated in conjunction with what is set out in the prosecution opening.

7You are aged 34 and you have no prior convictions.  Up until the circumstances that bring you before this court you had otherwise led an unblemished life.

8The circumstances that bring you before me may I think be briefly stated.  The victims in this episode of offending by you are police officers and relevantly each was going about his job as a police officer.

9The history of the matter dates back until 5 November 2015 when you were pulled over by police and it was alleged that you refused to undergo a drug test.  You were charged with this offence and your licence to drive suspended for a period just exceeding twelve months between 18 January 2016 and 1 February 2017.  That charge was later withdrawn so that your licence had been suspended without conviction or proper reason.

10On 26 September 2017 you were charged by officer Garrett with dangerous driving during the course of a police pursuit of your vehicle.  On that date you were admitted to Monash Hospital and treated for mental illness.  Between 1 November 2017 and 11 December 2017 you used email to menace Officer Garrett.  You were charged and dealt with in the Frankston Magistrates' Court for these driving charges and menacing charges on 17 July of this year.  You were imprisoned for two months and fined $750 and your licence cancelled for 12 months.

11All of this is by way of a prelude to this offending for which I must sentence you.

12Between 12 December 2017 and 15 April 2019, a period of about 17 months you continuously stalked officer Garrett by sending to him in excess of 100 emails.  In these emails you were highly disparaging of officer Garrett and in some you encouraged him to kill himself.  You threatened to subpoena his medical records.  In others you were highly critical of police, the law and the State of Victoria.  The emails were harassing, demeaning, intimidating and derogatory in nature.  The content of them was of a kind that no reasonable person would or should have to tolerate.  The content of the emails is summarised in the prosecution summary and it is not necessary that I here repeat it. [see paragraphs 14 to 34 inclusive]  [Charge 1 stalking officer Garrett].

13On the 14 and 15 April 2019 you sent emails to a number of agencies engaged in law enforcement and to the Frankston Police Station and the prosecutors’ Office at the Frankston Police Station.  Those emails implied that you were going to cause an explosion which in your words would be “violent extremism”.  [Charge 2 Bomb Hoax]

14On the 15 April 2019 police executed a search warrant at your address.  You were in an office within and behind a closed door.  As police approached you burst out through the door brandishing and swinging a sword at officers of the Critical Incident Response Group causing the police concerned to fear for their safety.  [Charge 3 Assault an Emergency Worker on Duty and Related Summary Offence Use a Prohibited Weapon without Exemption].  Soon after you were arrested and soon after assessed by a forensic medical officer as being unfit to be interviewed.

15You have remained in custody ever since a total period of 250 days a period of at least eight months.  Two months of that time between 17 July and
17 September is time that must be accredited to the sentence you received in the Frankston Magistrates’ Court on 17 July 2019.  Pre-sentence detention for this offending is 187 days, a period of six months.

16Your offending in each of these charges is clearly serious.  Your stalking was prolonged, persistent and clearly very personal and aimed at putting officer Garrett in fear of you.  In his dealings with you he was doing no more than only doing his job.  Day after day this court is reminded that being a police officer and having to deal with members of the public is one of the very hardest of vocations.  Police are generally very tolerant and often put up with abuse from members of the public.  But when that abuse becomes personal, and is persistent and not just a spontaneous reaction by someone who is upset, the abuse can cross the line of tolerance and that is what has happened here.  Your offending in the first charge of stalking is a serious example of that offence falling in the upper mid-range category in my view.  So too the other two charges.  The summary charge arises from the same facts alleged in
Charge 3.  To avoid double punishment you will be convicted and discharged on the summary charge.

17I turn to matters personal to you.

18You are aged 34 and when not in custody you resided with your parents.  You are the youngest of two boys, your brother is a software engineer and he has never been in trouble with the law.  You have never been married and have no children.  You have had one significant relationship with Ms Lockens with whom you previously lived but that relationship has ceased but Ms Lockens remains a friend who is fully supportive of you providing as she did a very good and helpful written character reference.

19You grew up in Bentleigh and you went to school in Mentone where you completed Year 12.  After completing school you enrolled in but did not complete a Bachelor of Computer Science at Monash University.

20You have a good work history, mostly in the IT industry.  From April 2016 you unsuccessfully applied for a disability support pension and for insurance for Total and Permanent Disablement.

21In 2010 you met and commenced a relationship that lasted around seven years with Ms Lockens.  This ended in 2016 due to circumstances surrounding your developing mental illness.  In 2014 you had purchased a house together.

22After 2015 a series of events seem to have contributed to the deterioration in your mental health.  In 2015 there was the charge of refusing a breath test later withdrawn.  In 2016 you were the subject of an audit by the ATO.  In 2017 your mother was diagnosed with Multiple Myeloma that required her to undergo surgery and chemotherapy.  These events looking back on it seem to have affected your already fragile mental health.

23In 2016 you sought assistance for a generalised anxiety disorder.  Following the driving incident involving the alleged refusal to undergo a drug test you consulted with psychologists Miriam Latif and Peter Kyriakoulis and I have received into evidence reports from these treating psychologists.

24Ms Latif has diagnosed you as suffering Autism Spectrum Disorder  and Social (Pragmatic) Communication Disorder.  In April 2018 Peter Kyriakoulis diagnosed you as suffering Major Depressive Disorder, Autism Spectrum Disorder and Generalised Anxiety Disorder and Acrophobia.

25I received into evidence a psychiatric report from Dr Alan Jager dated
25 October 2019.  He was of the opinion that you do not meet the diagnostic criteria for Autism Spectrum Disorder.  It was his opinion that you meet the diagnostic criteria for severe chronic major depressive disorder with anxiety.  I accept and act upon this opinion.

26I also received into evidence reports and records from Monash Health and Justice Health and from Corrections and Forensicare.  I accept the submission of counsel that what comes through from all of this evidence is that you are a person with severe depressive symptoms requiring ongoing mental health care.

27Dr Jager opined that your depressive illness emerged in 2016 and you had suffered a personality disorder from adolescence with both of these mental illnesses being in place at the time of offending.  Throughout your incarceration you have sought and received treatment for your mental health needs.

28Your counsel submitted, and I accept, that in sentencing you whilst I must have regard appropriately to the need for general and specific deterrence, because you were suffering at the time of offending, and now, with a Major Depressive Illness and Anxiety Disorder, general and specific deterrence should be moderated and also because of these factors you would find a further term of imprisonment more burdensome than most. Accordingly I have taken these factors into account in deciding the kind of sentence I should pass.

29I also take into account the fact you are aged 34 with no prior criminal history and strong family support.  I also take into account your pleas of guilty and the fact you have used your time in custody well, completing several courses and returning several negative screenings for illicit drugs.

30As I indicated earlier the prosecution opposed any disposition resulting in your immediate release from custody.  It argued that your offending was too serious and that the sentencing principles of deterrence (both general and specific), denunciation, protection of the community and just punishment required a sentence of imprisonment and the fixing of a non-parole period.  In my judgment, whilst acknowledging your offending is serious and normally would require the making of such a disposition, here the prosecution submission does not attribute proper weight to the large raft of medical evidence and opinion relating to your mental health both at the time of the offending and now.

31In my judgement, having regard to the total time you have been in prison, and the circumstances of your offending, and your established mental illness, the making of a Community Corrections Order with appropriate conditions can achieve all of the purposes of sentencing in this case.

32Accordingly, I had you assessed by way of a full pre-sentence report as to your suitability to undergo a Community Corrections Order.  The assessor had available to him all of the available evidence related to your mental health.  You have been assessed as being of medium risk of re-offending and you have indicated your willingness to enter into and comply with a Community Corrections Order when released from custody with conditions.

33I propose to sentence you to a combination sentence being time served and a Community Corrections Order.

34On Charge 1, stalking, you are convicted and sentenced to a term of imprisonment of 187 days (time served).

35On Charge 2,  bomb hoax, you are convicted and sentenced to a term of imprisonment of 187 days (time served).

36On Charge 3, assaulting an emergency worker on duty, you are convicted and sentenced to a term of imprisonment of 187 days (time served).

37Those sentences are to be served concurrently.

38I declare that 187 days pre-sentence detention be reckoned as having been served of the sentences passed this day and be entered into the records of the court and be deducted administratively.

39In addition, on Charges 1 to 3, I make a Community Corrections Order with conviction for a period of three years with conditions as follows:

40That you are not to make contact, or attempt to make contact, either directly or indirectly with Detective Leading Senior Constable Mark Garrett of Victoria Police, or with Ms Ciara O’Dwyer at the Independent Broad Based Anti-Corruption Commission;

41That you undergo supervision;

42Pursuant to s. 48D(3)(e) you undergo Mental Health Assessment and Treatment;

43Pursuant to s. 48D(3)(f) that you undergo offending behaviour programs as directed.

44Pursuant to s 48K that you undergo Judicial Monitoring by me every six months

45For the purposes of s. 6AAA I state that had it not been for your pleas of guilty to the charges I would have sentenced you to a term of imprisonment of three years and I would have fixed a non-parole period of two years.

46The prosecution sought the making of a forensic sample order pursuant to
s. 464ZF of the Crimes Act 1958. That order was not opposed and for the reasons stated in the order I will sign it.

47The prosecution also sought the making of a disposal order which was not opposed and I will also sign it.

48Now, Mr Macras, you have heard the conditions I propose for the community corrections order.  Are you prepared to enter into a community corrections order with those conditions?

49OFFENDER:  Yes, Your Honour.

50HIS HONOUR:  I ask you that because I can only make that community corrections order if you agree, do you understand?

51OFFENDER:  Yes, Your Honour.

52HIS HONOUR:  Now, I want to make it quite clear, I have made a condition that you will be judicially monitored by me every six months, do you understand?

53OFFENDER:  Yes, Your Honour.

54HIS HONOUR:  So I will get a report from the Corrections and you will have to come in and see me every six months.  In the meantime, in between the six month periods, if you breach these orders in any way, I will be told about it, do you understand?

55OFFENDER:  Yes, Your Honour.

56HIS HONOUR:  And you will come back before me and you will be re-sentenced, and depending upon the circumstances you may be re-sentenced and sent back to prison.  Do you understand that?

57OFFENDER:  Yes, Your Honour.

58HIS HONOUR:  Clearly understand that? 

59OFFENDER:  Yes, Your Honour, I do.

60HIS HONOUR:  Very well.  Well, now, as I understand it, you are free to be released from the dock today, so could you come out of the dock please and take a seat behind Mr Nelson Brown.   Could you take your client just appropriately through that Mr Nelson Brown, and have him sign it please.

61MR BROWN:  Yes, Your Honour.

62HIS HONOUR:  Well now Mr Macras, you are fortunate, you have got the support of your family and a number of other people have supported you through this.  I do not want to see you back here, except when you come back for Judicial Monitoring, do you understand?

63OFFENDER:  Yes, Your Honour.

64HIS HONOUR:  If this behaviour is repeated, you can expect to go to prison, so please do not do it. 

65OFFENDER:  Yes, Your Honour.

66HIS HONOUR:  Comply with the Community Corrections Order in every way.

67OFFENDER:  Yes, Your Honour, I won't disappoint you, Your Honour.

68HIS HONOUR:  Very well.  You are free to leave. 

69MR LIVITSANOS:  If Your Honour please.

70HIS HONOUR:  Thank you Mr Livitsanos.

71MR BROWN:  Thank Your Honour. 

72MR LIVITSANOS:  Merry Christmas to Your Honour too.  Have a good break.

73HIS HONOUR:  Thank you.  I will just leave the Bench whilst the other matter is brought. 

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