Director of Public Prosecutions v Mayne

[2015] VCC 1986

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-02190

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL MAYNE

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	3 July 2015
CASE MAY BE CITED AS:	DPP v MAYNE
MEDIUM NEUTRAL CITATION:	[2015] VCC 1986

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	Mr M. Regan	Office of Public Prosecutions
For the Accused	Ms M. O'Brien

1Michael David Mayne, you have pleaded guilty to an indictment charging you with false imprisonment on 24 July of last year, the particulars being that you assaulted the victim and unlawfully imprisoned her against her will. 

2You have a number of prior convictions going back to 1983 largely for offences of quite different character and it seems that it is only in relation to the particular victim that you have engaged in conduct of this kind.  I have been told of the other events which form part of a series of offences involving that victim arising out of what has been described to me as a complicated relationship between the two of you.  That complication seems to persist in that, despite those incidents and despite the presence of an intervention order protecting the victim, she has visited you in prison in recent times and maintains contact with you.  That order, I note, continues until July of next year and offers her protection from you to the extent that she seeks it. 

3The prosecution has relied upon and tendered a summary of prosecution opening on the plea.  It was read a few minutes ago and I am not going to repeat it.  It describes an ugly series of events which occurred in that period up to and including 24 July last year and prompted members of the public to call the police because they were horrified by what they saw. I am sure in the cold light of day you are horrified by what they describe.  The real thrust of the plea on your behalf is that you accept, subject to the qualification in relation to one of the eyewitnesses as to what he claims he saw, which seems to be at variance with other eyewitnesses, which was discussed during the course of the plea hearing and the prosecution have not sought to rely upon that account and, indeed, they have accepted that it is an untested account and therefore the summary of prosecution opening is accepted, with that qualification, as being an accurate statement of relevant events.

4

Of course, this is a serious offence which carries a maximum term of imprisonment of ten years.  Had it not been for the fact that you had been dealt with as recently as 27 May this year for offences which seem to be part of a series of offending conduct involving the same victim commencing on

24 July last year, I would have been inclined to impose a term of imprisonment in the order of nine months, which was that imposed by the magistrate in relation to those other matters.

5Your counsel rightly drew my attention to the totality principle which involves looking at the sentence that I have to impose in the light of other sentences that have already been imposed, particularly for offences of a similar kind arising out of that series of offences and require me to impose a sentence that is just and proportionate in all the circumstances.  I think in those circumstances that I should treat the matter as close to one where, had these matters all been dealt with by the Magistrates' Court at the same time, I would have to consider what the sentence was likely to have been and use that as a yardstick against which to determine the appropriate sentence in your case.

6You have pleaded guilty.  You get full credit for that.  You admitted your conduct to the police and therefore you have sought, from an early stage, to assist the administration of justice.  I accept that in the cold light of day you are remorseful for the violent conduct that you meted out on this occasion which you claim, and I accept, is out of character.  It clearly was against the background in which you were using ice.  That does not amount to a mitigating circumstance but it does perhaps explain how it is that you were behaving in a manner that seems to be out of character in regard to your previous record.

7

As to your prospects of rehabilitation, I think that the fact that Mr Bolkas has offered you accommodation gives you a reasonable chance of rehabilitating yourself and at least a better prospect for the future than if you were simply being let loose on the community once again.  Of course, one has to be guarded about your prospects of rehabilitation but one hopes that this period of imprisonment that you are serving, and will have to serve out to

18 September this year, will serve as a deterrent to you.  I think to the extent that I need to consider individual deterrence, that can be properly dealt with by imposing a sentence upon you which is concurrent and does not add to your present sentence.

8It is necessary for the courts to express denunciation of conduct of this kind.  It is not always easy to do that in the somewhat complicated sentencing circumstances with which I am faced.  The sentence that I intend to impose to achieve the outcome that I have indicated, I think, may suggest a more lenient approach than would ordinarily be required to meet that requirement of denunciation, also to punish you adequately for your offending conduct, as well as tending to deter others from committing offences of this kind.

9However, if people take the trouble to read these sentencing remarks and to look at the conversation that has occurred between counsel and myself during the course of the plea hearing, they would have a better understanding of why it is I have come to that conclusion.

10The other significant factor is your health.  I have been provided with a letter from Dr Milner dated 16 December 2014 which speaks of the melanoma that you have which has spread to a lymph node.  He describes your prognosis as poor.  It is accepted by the prosecution that that is an exceptional circumstance and one that influenced the prosecution in the decision to keep the matters that were before the Magistrates' Court within the Magistrates' Court jurisdiction.  As I understand the prosecution position, had they been aware of this matter in time, that this matter too might have been dealt with at the same time at the Magistrates' Court.  It seems to me that that should be a powerful factor in influencing me to reach the decision I have.

11It is important that you appreciate that when you are released from prison and you have time to reflect on these matters, you do not get tempted engage in conduct of this kind again, because if you were to do so, that would almost certainly result in you being sent to prison for a significant period of time.  Given your current medical conditions, that would be a very unhappy circumstance indeed.  I am quite sure that you are aware of that and that you will take that into account.  It also acts as a powerful deterrent against you repeating conduct of this kind.

12In all those circumstances, I am ready to impose sentence upon you. 

13Michael David Mayne, on the offence of false imprisonment to which you have pleaded guilty, I sentence you to imprisonment for a period of 70 days; that sentence will be concurrent with the sentence you are presently serving and, by my calculations, will not add to the period that you will have to serve.

14

But for your plea of guilty, I would have sentenced you to imprisonment for

90 days in all the circumstances.  There is no pre-sentence detention to be taken into account but it will be apparent, from the sentence that I have imposed, that I have taken into account the principles arising from the case of Renzella.  I do not need to give the citation, it is so well known, and other cases that have flowed from that decision, which requires me to take into account the period that you are presently serving arising, as it does, from part of a series of similar offences which might have been dealt with at the same time in the Magistrates' Court.

15I make the order for you to provide a forensic sample in accordance with the draft.  If it becomes clear to the prosecution that that is unnecessary - have you checked that, Mr Regan?

16MR REGAN:  Your Honour, all we can do at this point, we have checked backwards and forwards through the LEAP history and there is no reference to a 464 order being made.

17HIS HONOUR:  Very well, I will make the order and it will require you to provide a scraping from the inside of your mouth when you are required to do so by an authorised officer.  If you provide that sample, all well and good;  if, however, you fail or refused when requested to do provide such a sample, the officer will be authorised to take blood from you and may use reasonable force.  I am quite sure that you will not put the officers to that trouble.

18Are there any other orders I need make?

19

MS O'BRIEN:  Your Honour, I am conscious that you passed sentence but there is one complicating matter and it might be a red herring that I was thinking about.  According to the records, his earliest release date is

18 September, however, given the recent riots, as I understand it, the prisons have been in lockdown and for ‑ ‑ ‑ 

20HIS HONOUR:  So there might be a reduction then ‑ ‑ ‑ 

21MS O'BRIEN:  Then I believe there will be, and Mr Mayne might be able to - but that reduction would obviously not apply to the sentence Your Honour has just passed.  I am told that it is four days for every day in lockdown and I believe they have been in lockdown two days.  Mr Mayne might ‑ ‑ ‑ 

22PRISONER:  Yes, that is normally the situation but we have had lockdowns but not full lockdowns so I am not fully aware of what is going on myself.

23HIS HONOUR:  Frankly, it does not make a lot of difference, I would be inclined therefore, to adjust my sentence to 60 days; does that give you a little bit more leeway?

24MS O'BRIEN:  Absolutely, Your Honour.

25HIS HONOUR:  If it, perchance, is that you have to say on till the 19th, 20th or 21st, I am afraid I cannot help that but I think I have to mark the seriousness of this offending with some degree of custodial sentence and if I say 60 days, I think that gives you a sporting chance, at least, of getting out on the 18th.

26PRISONER:  Thank you, Your Honour.

27MS O'BRIEN:  Yes, Your Honour, if it 18 September, obviously he will remain there on the other charges.

28HIS HONOUR:  It may well that there is some reduction and, as I say, I really do not think it matters in the overall scheme of things.  So we will say 60 days.  I will amend my sentence to 60 days and I will amend my s.6AAA to 75.

29MR REGAN:  We are just looking for the word concurrent.

30HIS HONOUR:  I did say concurrent earlier.  So the 60 days is concurrent as well as ‑ ‑ ‑ 

31MR REGAN:  Mr Sherwood has correctly indicated that the preference would be that the new articulation of the entire formula, so the period, concurrent and the 6AAA reformulation.

32HIS HONOUR:  Very well.  The new formulation is that I convict you and sentence you to imprisonment for a period of 60 days and that is to be concurrent with the sentence you are presently serving.  But for your plea of guilty, I would have sentenced you to imprisonment for 80 days. That satisfies your concerns, does it not?

33MR REGAN:  I think so. 

34HIS HONOUR:  The new formulation is complete.  I will sign these drafts.   You can take a seat now, Mr Mayne.

35PRISONER:  Your Honour, can I ask a question?

36HIS HONOUR:  I am sure you can.

37PRISONER:  I'd just like to know when I was arrested they took all my property, how do I go about (indistinct) get my property back.  They took my runners and phone, yeah, I'm not being smart, I hope I don't seem as if I'm being smart, it's how do I go about it?

38MS O'BRIEN:  Perhaps if I could indicate to Mr Mayne that this was raised with the police on the last occasion and I will have the instructing solicitor follow up again on that.

39HIS HONOUR:  Very well.

40PRISONER:  Thank you.

41HIS HONOUR:  Your counsel is going to chase it up for you.

42PRISONER:  Thank you very much, Your Honour.  Thank you for the opportunity.

43HIS HONOUR:  Well please take it.

44PRISONER:  I will. 

45HIS HONOUR:  Very well, I have signed that in triplicate, Mr Regan.  Nothing else?

46MR REGAN:  Nothing else, Your Honour.

47MS O'BRIEN:  No, Your Honour.

48HIS HONOUR:  Thank you for your help, both of you.

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