Director of Public Prosecutions v May
[2021] VCC 377
•31 March 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-01231
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYSON MAY |
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| JUDGE: | HIS HONOUR JUDGE McINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 January 2021 |
| DATE OF SENTENCE: | 31 March 2021 |
| CASE MAY BE CITED AS: | DPP v May |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 377 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Traffic drug of dependence – theft of firearm – theft – common law assault – possess a drug of dependence – handle stolen goods – commit indictable offence whilst on bail – possess cartridge ammunition without a licence/permit – contravene a conduct condition of bail – Imprisonment - Community correction order
Legislation Cited: s. 71AC(1), s.73(1) Drugs, Poisons and Controlled Substances Act 1981 – s. 74AA(1), s.74(1), s.88 Crimes Act 1958 -
Sentence:Total effective sentence is 221 days imprisonment with 221 days of presentence detention.
Charge 1 and 2 - Convicted and ordered to serve a community correction order for a period of 2 years (therapeutic conditions).
Summary Charge 15 – convicted and ordered to pay a fine in the sum of $330.44 and granted a stay to 01/10/2021.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Pillai (Sentence) Ms. T Saville (Plea) | Office of Public Prosecutions |
| For the Accused | Ms E. Millar | Victoria Legal Aid |
HIS HONOUR:
1In this matter, to which Mr May has pleaded guilty at the original hearing on 29 January 2021, Ms Saville appeared on behalf of the Director and Ms Pillai appears today. Ms Millar appeared on behalf of Mr May and does so today.
2Insofar as Mr May is concerned, he was 24 at the time of the offending. He is now 25.
3Additional documents were tendered today, owing to the request by the Court for both a potential Justice Plan provision by way of condition for a Community Correction Order, and a Corrections report.
4At the plea hearing, bail was granted, after Mr May had served the period of 221 days in remand, insofar as these offences are concerned.
5In describing Mr May’s history, I think I might have used the words, that he was 'a pest', to the police given the types of offences, if not the community, although it is noted that over that period of the priors, which I'll go to specifically in due course, no gaol had been imposed by the Courts.
6It may well be that the type of offences, the repeat type of offences, the annoyance to the police, may indicate that the Courts in their experience were able to perceive certain aspects about Mr May that led to no gaol being imposed.
7It was as a result of what the Court was advised of the recent diagnosis, which we note at that time was the Statement of Disability dated 17 January 2020, Exhibit B, that the Justice Plan was requested.
8If I can firstly go to those documents, because it does impact upon this sentence dramatically. The first, is that Mr May has an intellectual disability, that is set out in Exhibit B.
9In Exhibit C, the Justice Plan, dated 18 March 2021, the following comments were made, under Education and Vocation:
Mr May has reported that he has had challenges with his education, reading and writing during his formative years. He repeated grade two (2) and he had a teacher's aide for the remaining years in primary school. Mr May left secondary school after year 10, after a significant amount of time absent from class.
10Mr May has had, apparently, a number of labouring type occupations. They unfortunately came to an end because of his excessive use of drugs and it is hoped, according to the report, that he can attain employment again.
11Mr May reported, an extensive drug history. Following his release on bail, he had moved into the family home, his parents remain supportive and he is eager not to reoffend and/or to let his family down.
12Such seems consistent with the comments made by Ms Millar this morning that Mr May appears, on a subsequent community correction order imposed by a Magistrate, to be proceeding well.
13The Justice Plan itself, Exhibit C, notes in summary, a long entrenched history of substance abuse which has contributed to his offending, and that Mr May’s intellectual disability impacts his ability to regulate his emotions which has led to further criminal involvement, see p.2 under the heading, 'Summary.'
14Exhibit 4 which was tendered, is the psychological report of Dr Warren Simmons, dated 23 December 2020. If I go to paragraph 25, p.5:
'Mr May revealed that he struggled academically and is illiterate, admitting that he struggled with classwork.'
15Paragraph 26:
'While there was little in Mr May's childhood that would have left him vulnerable to substance use, his more recently diagnosed intellectual disability would mean that he would have struggled with daily life and needed support of others.'
16Paragraph 28:
'Mr May has a history of prior convictions, noting that most of them appear to be drug related. There was certainly no significant evidence of anti-social personality traits previously and it is unfortunate that his intellectual disability was not recognised until a little over 12 months ago. As such there has been little opportunity to put any effective interventions in place given the period of time Mr May has been in custody on this occasion. Mr May's current offences would appear to be a continuation of a pattern of behaviour that has continued for some time and has involved substance use and Mr May making poor decisions.'
17Dr Simmons says as follows, at paragraph 29:
'While disposition is a matter for the Court, it is respectively suggested that Mr May would benefit from undertaking a Justice Plan which would be able to provide some supports in areas that he has difficulties. This includes life skills which are noted in the client overview report, as being very limited.'
18Dr Simmons goes on to talk about other assistance, such as the referral for drug and alcohol counselling.
19The submission put at the last hearing by the Prosecution, and maintained today, was that given the totality of the criminality, the prior offending, and the failure of Mr May to react favourably to previous dispositions by way of community correction orders, that the appropriate sentence should be a term of imprisonment with a non-parole period, but not a combined order, which was the submission made by the defence.
20It is a very difficult situation for the Court in those circumstances. As a matter of humanity, as has been quoted many times in the Courts, this Court should, where persons are intellectually disabled, ensure that a person is not placed in gaol, if at all possible.
Prior Offences
21Hence, as I said, and despite the 12 pages of prior offences, there has been no gaol previously imposed upon Mr May, until the remand in this matter. I point out that Mr May is still only 25.
22The most recent priors are that Mr May had a conviction for possession of a controlled weapon in February of 2020, for which the only order made was an order of destruction of that weapon. In March of 2019 in regard to theft, possess and carry a controlled weapon without excuse, two charges, possess drugs, traffic offences, Mr May was given a community correction order for a period of 18 months. The prior offences are for a period from May of 2015 through to February of 2020.
Charges on Indictment
23If I could then go to the charges in this matter, it is clear that these are of a more serious degree, albeit that they are described in other terms in due course. The first charge relates to the trafficking in drugs of dependence being Methylamphetamine, Cannabis L. and 1, 4-Butanediol, an offence under s.71AC of the Drugs Poisons and Controlled Substances Act 1981, for which the maximum penalty is one of 15 years imprisonment.
24Charge 2 is a charge of theft of a firearm. This is a particular provision under the Crimes Act s.74AA for which the maximum penalty prescribed is one of 15 years imprisonment.
25Charge 3 is one of theft, contrary to s.74 of the Crimes Act. That particular charge relates to a cross-bow, a drill or a number of other items belonging to Douglas White. The maximum penalty for that is one of ten years imprisonment.
26Charge 4 is a charge of common law assault. It relates to the 23rd of June 2020 and involved an assault upon his then partner Hayley Quirk, by the use of the firearm.
27Charge 5 involves possession of drugs of dependence, in particular methylamphetamine, an offence against s.73(1) of the Drugs Poisons and Controlled Substances Act for which a maximum penalty is set at one year's gaol or 30 penalty units.
28Finally, Charge 6 is one of handling stolen goods, contrary to s.88 and the maximum penalty involved in that matter is one of 15 years imprisonment. A schedule was tendered to the Court as to such goods.
29Coming to the prosecution summary, Exhibit A, the first item in the summary related to the theft of the firearm, Charge 2, and the charge of theft, Charge 3. This occurred somewhere between 10 May 2020 and 15 May 2020 in a burglary which occurred at premises where Mr Justin Dow and a Douglas White reside, located at 71 Thorndyke Drive, Miepoll. The stolen items were located subsequently at Mr May’s address, pursuant to warrant of Mr May.
30All charges in this matter emanated out of the argument and assault on Mr May’s girlfriend committed on 22 June of 2020, and the warrant that was executed thereafter.
31We then come to Summary Charge 21 which is the contravention of a condition of bail, essentially a non-consent change of residence.
32Then Charge 4 on the indictment is the common assault that I've referred to. That took place on 22 June 2020. There was a verbal argument between Mr May and his partner, during which he walked into the bedroom and got the sawn-off .22 and came back and pointed it in her face. There was no evidence before the Court of whether it was loaded or not. However, clearly, Ms Quirk, given the circumstances, would be entitled to be particularly concerned about that. There is no victim impact statement.
33The handle stolen goods charge, the possession of drugs charges and the possession of ammunition are set out at paragraphs 13 through to 16 of Exhibit A. Then there is also the summary charge, Charge 6, which was to commit the indictable offences. That has been amended to include all of the matters that make up these charges.
34Insofar as the plea in this matter, I go to the written submission of Ms Millar. The particular submission related to the more recent diagnosis of intellectual disability insofar as the offending is concerned. While accepting that the charges are serious, and require the appropriate sentencing considerations, there was some discrimination insofar as the drug trafficking was concerned.
35It is pointed out that the period in which the drug trafficking simpliciter took place was a period of one month, that there is no specific quantity insofar as to the amphetamines, and in any event it is very low being 3.58 grams.
36Coming to the assault charge, it was conceded as being a serious offence. It was noted that the offence involved the brandishing of the firearm. As I said, there was no evidence of whether it was loaded or capable of being loaded, and a photograph of the weapon was provided in the photographs.
37The plea then went to personal matters. It was noted that Mr May was raised in Shepparton, where is now living apparently. Mr May has largely lived with his parents in Shepparton, however in recent years he has lived on and off with Ms Quirk who was the victim in regard to the assault charge and indeed, Ms Quirk gave birth to a child of Mr May's in December of 2020.
38As to Mr May’s prior history, as pointed out, he has never previously been in gaol in regard to his offences, numerous though they are. It was noted the reference to the report, that I have already read out from Dr Simmons, the diagnosis of substance-use disorder.
39It was also noted that while Mr May has been in custody such would necessarily be onerous for him. This period in custody involved periods of COVID-19 quarantine and the related restrictions which have been referred to. He was also apparently subjected to an assault while in gaol.
40There is also reference to a requirement for him to have been in protection, and there was apparently an accrual of 106 Emergency Management days which are dealt with administratively. Mr May has also, because of COVID-19 had restricted personal visits.
41It was pointed out to the Court that Mr May is still a relatively young offender. The plea of guilty was submitted as a matter that should be taken into account, and the appropriate discount given.
42There is no dispute that a period of imprisonment should be imposed, but it was submitted that in all the circumstances, that period should be combined with a community correction order. I requested the documents that have now been tendered, and I have read out the matters that were received insofar as the Justice Plan is concerned, and I want to go to the Community Corrections Report, which Ms Pillai rightly refers to this morning as being negative.
43That report, Exhibit E, assesses Mr May as unsuitable. He has been assessed as unsuitable because of a high risk of general recidivism and that prior community correction orders have not facilitated an end to his criminality.
44There was concern expressed in that report about the types of crimes, in particular Mr May’s issue as to guns, although one notes, apart from possession of weapons, there has been no assault charges connected with guns until now. The report determined that he is assessed as unsuitable because of his previous failures.
45As I say, the prosecution maintain its submission that the sentence should not be such as to involve a combined order.
46It seems to me that when dealing with a person with an intellectual disability, humanity demands that the Courts must skew sentences to ensure that periods in gaol are not imposed, if at all possible.
47As indicated in this case, Mr May has in fact served 221 days. Given the totality of the circumstances in this case, despite the negative community correction report and the submission of the prosecution, I consider that it is appropriate to pass a combined order.
48It may well be, in conjunction with what I understand to be a community correction order recently imposed with a Justice Plan in the Magistrates' Court, the first time that appropriate steps have been taken to try to deal with the intellectual disability that Mr May has, and such steps may lead hopefully to the cessation of his criminal behaviour.
49It is hoped that this sentence, will be such that with a combination of a period of gaol of 221 days, plus a community corrections order for two years with appropriate conditions, will hopefully lead to circumstances where the feared recidivism, set out in the community correction report, based upon Mr May’s prior sentences, but of course, prior to his diagnosis, and being given the assistance necessary for an intellectually disabled person, that those fears will never be realised.
50In those circumstances, I intend not to accept the submission of the Prosecution as to sentence and to accept the submission put to me by Ms Millar as to Mr May.
Sentence
51Mr May, given the manner in which these matters are conducted, you can stay where you are.
52I intend to sentence Mr May. He will be convicted on all charges and I sentence him as follows:
53On Charge 1, Mr May is sentenced to 221 days and a community corrections order of two years. Appropriate conditions will be, to seek assistance in regard to further offending, drug/substance issues and the implementation of a Justice Plan together with supervision by the Community Corrections Victoria;
54As indicated in the report, Exhibit E, if a community correction order was imposed, the accused is required to report to Shepparton Community Corrections office;
55In regard to Charge 2, I will equally impose a sentence of 221 days and a community corrections order of two years. It will be the same community corrections order with the same conditions imposed in Charge 1 as is permissible under s. 40(1) of the Sentencing Act;
56In regard to Charge 3, I sentence Mr May to imprisonment of 60 days;
57In regard to Charge 4, imprisonment of six months;
58In regard to Charge 5, imprisonment of 60 days; and
59In regard to Charge 6, imprisonment of six months.
60Insofar as the summary charges, on Charge 6, a period of imprisonment of one month. In regard to Charge 15, for which penalty units are the appropriate sentence, I impose two penalty units which, in total, is a figure of $330.44 and I propose that a stay of six months be given in regard to such payment.
61In regard to Summary Charge 21, I impose imprisonment of one month.
62The aggregate imprisonment imposed therefore in regard to all of these sentences, by way of the operation of concurrency, will be 221 days and in addition from this day, a community corrections order for a period of two years will be imposed, with the terms that I have indicated.
63Pursuant to s.18 I declare that the 221 days served to date be deemed service of this sentence, and the result of that, of course, means that there is no need for any further periods of imprisonment to be served by Mr May, and such declaration be recorded in the records of this Court.
64In regard to s.6AAA, Parliament requires Courts to indicate had a person not pleaded guilty to the charges in the indictment, what the sentence where a period of imprisonment is imposed, would otherwise have been. That requirement relates specifically to the plea being entered of guilty. I think as I have indicated, this particular sentence is so impacted by the fact that Mr May is a person who is intellectually disabled, that it is not possible for me to give that indication
65Insofar as the disposal orders and the two forfeiture orders sought, I indicate that I have signed those as there was no objection to those.
66In regard to the provisions of s.16(3C) and the fact that these offences were committed while on bail, I direct in the totality of the circumstances as a matter of justice that the sentences imposed in this matter be not cumulated.
67I do not think there is anything else that I have got to go to, is there?
68HIS HONOUR: Thank you Ms Millar. Thank you for your assistance. Now because of COVID-19, Ms Millar, I will just check. The circumstances of the community correction order I can go out if necessary, but essentially what's necessary is for you, I assume you've already got those instructions, if a combined order was passed which it has been, have you got instructions to indicate your client's acceptance of such order as is required.
69MS MILLAR: Yes, Your Honour.
70HIS HONOUR: All right. That is sufficient in the circumstances given the COVID emergency provisions. Do you indicate you have those instructions?
71MS MILLAR: Yes, Your Honour, yes. The order's consented to.
72HIS HONOUR: Do I need to do anything more than that?
73MS PILLAI: No.
74HIS HONOUR: No. Thank you. So that order will be made in those terms and what do we do insofar as service on Mr May's instructing solicitor and counsel? Yes, we'll do that as soon as possible. Thank you all. Thank you for your assistance in regard to a difficult sentence for any Court. Yes, thank you.
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