Director of Public Prosecutions v McAlister

[2018] VCC 1224

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR 17-01360

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRADLEY McALISTER

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Shepparton
DATE OF HEARING:
DATE OF SENTENCE:	9 August 2018
CASE MAY BE CITED AS:	DPP v McAlister
MEDIUM NEUTRAL CITATION:	[2018] VCC 1224

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 R. Hammill
For the Accused	Mr J. Mortley

HIS HONOUR: 

1Bradley Thomas McAlister, you have pleaded guilty to one charge of causing injury intentionally, one charge of false imprisonment, one charge of robbery, one charge of kidnapping, one charge of theft and one charge of prohibited person possessing a firearm.  Those crimes carry maximum penalties of
ten years; ten years; 15 years; 25 years; ten years; ten years, respectively.  You also pleaded guilty to two uplifted offences against the Bail Act, one of which carries a maximum penalty of 3 months' imprisonment.

2You have pleaded guilty to a settled indictment, and I take that into account.  Insofar as remorse is concerned. I have grave reservations but you must of course get the utilitarian benefit of the plea of guilty.  Had this trial proceeded in the way in which it was originally proposed, it would have taken up a lot of court time.  Accordingly, you have to get the benefit of that.  There are four of you involved and each one is going to be sentenced subject to a different summary of facts. 

3The complainant in the matter, Mr Booby, has given evidence and made statements.  As a result of the standard of that evidence and the standard of his statements, it is virtually impossible to sentence all four of you on one set of facts.  Accordingly, I will be sentencing you on the basis of the summary of the prosecution opening that was tendered.  And I simply say that there are aspects of it, that I have given you the benefit of a doubt where Mr Booby at a later time would appear to have said something quite different.

4Mr Booby. at the time of the offending, was 24.  Your co-accused, Mr Gray, is 45 years of age.  He had a partner, McCallum, who is also a co-accused.  You were 27 years of age at the time.  Another accused, Mr Warby, was 21 years of age.  At the time the complainant originally said he never met you but subsequently said he had.  Everybody was using drugs.  It would seem to me that everybody was trafficking in drugs and that was all occurring around 70 Mistletoe Street, Golden Square, which was the home of Mr Gray.

5It is clear from the material before me that Mr McCallum was trafficking from that address and others as well.  In any event in October of 2016, police executed a search warrant at the home of a Chantelle Fraser, that is the complainant's partner.  Following that, a laptop, computer and other items were seized.  At 4.30 on the afternoon of 30 October 2016, the complainant drove his car to Mistletoe Street.  That attendance had been previously arranged after he had spoken to McCallum on a mobile phone, who told him to attend to pick up the drugs that were not ready. 

6Again, during the course of these pleas, there has been some - certainly during the course of the trial that existed, there was some cross-examination by
Mr Lavery in particular, which throws what really occurred that afternoon, in my view, into serious doubt.  But in any event, what is not in doubt is that the complainant walked into the house and he was struck to the head from behind with the blunt end of a tomahawk by you.  When he turned around, you struck him again to the head and he fell to the ground, losing consciousness.  I note from the medical material that has been supplied that there was one laceration to his head which puts doubt on the ferocity of the attack that he later describes. 

7In any event, he lost consciousness and was put up against a couch.  Whether he was actually tied up, I have really got no idea and do not intend to say that he was.  In any event after he gained consciousness and was in a position against the back of a couch, you certainly at least, struck a number of times.  Whether Gray did as well is a matter for his plea.  The complainant, I accept, totally was terrified and believed that he was going to be killed.  Whilst he was being struck, you at least, were insisting that he tell you what he had police in recent police interview.  He was being accused of lagging on Gray.

8At that stage, McCallum came in, took his car keys and took things out of his car.  That gives rise to the charge of robbery and of course, the false imprisonment lasts throughout all this.  A gun was apparently placed in a dirty green blanket on a table by the - possibly by the unknown man who has been described and never identified if he existed at all.  But in any event, that gun was waved around, you were present during all this.  I am not saying that you waved the gun at him.  Warby said he saw you striking the complainant with a baseball bat.  He clearly was struck with a baseball bat, on how many occasions, I would not even be prepared to find.  The injuries as I say that he is diagnosed as having, bear no relationship with the ferocity of the attack he claims occurred.  But it cannot be done, he was getting a hiding and he was defenceless.

9Apparently at some stage he must have told somebody that he had a shotgun or there were shotguns at his house.  In any event, he was let go.  McCallum got a towel for him, he was told to clean it up which he did, and you said, "We're going to get those pump actions", which clearly refers to shotguns.  He was in fear and you and Warby and on one account at least, the unknown male accompanied him to his own home.  It was suggested that the firearm was in the car at that time and there was menace with it.  And again, it is a bit up in the air as to how all that occurred.  That gives rise to the kidnapping.

10Subsequent to this, the complainant's car was taken away and burned, it is not suggested that you burned it, although apparently a photograph of the car burning was found on your phone.  Now your counsel told me someone else took that.  Again, this is going to be the case throughout this particular matter.  And I have got no idea what really happened.  It is clear that he was terrified and it is clear that it is a serious example of assault.  Hit someone in the head with a tomahawk and you go inside, it is as simple as that.  He was restrained, however, I am not prepared to find, he was repeatedly struck, beaten and terrified.  He was taken to his own home under threat and whilst ultimately effectively released by Mr Warby, there is a number of crimes in there which are serious in themselves. 

11When police raided your house, they found you hiding in the garage and they found, during a search of the car, a pen pistol.  Pen pistols only have one function, that is to shoot people.  You, during the course of the plea said that you were wearing it because it was a communal car, it just happened to be in the car near you.  The fact of the matter is, you were in possession of it and as I say, the sawn off shotguns that you are not charged with any more - and pen pistols have to be dealt with seriously.

12The matters from the Magistrates' Court are just simply committing indictable offences whilst on bail.  Got some concerns about why those matters are proceeded with, because of the problems it causes magistrates and people in custody, but be that as it may, they are and now obviously, you have pleaded and I have to deal with them. 

13That gives rise to all those charges, that is that the assault and which it was perpetuated and perhaps, you were assisting others as well in doing that on
Mr Booby, the holding him against his will which gives rise to the false imprisonment, the robbery which is the taking of his property, the kidnapping which in one sense is part of the false imprisonment, except the only difference is at one stage during the false imprisonment, he is carried away which gives rise to the charge of kidnapping.  Obviously the theft of the motor vehicle and that is the sum total of what you face. 

14A custodial sentence obviously has to be imposed and your counsel argued strongly on your behalf that a sentence followed by a community corrections order would be a sentence that was within range.  I have had you assessed for a community corrections order and they say that you are suitable.  They do describe you as a high risk of reoffending and that would seem to me to be very much the case.  It is clear from the circumstances of all this, this is not some user desperately trying to get money to buy drugs, you were there on your version in some form of debt collecting and there was a photograph found at your house with you and a machete and “debt collector” showing up in the photo.  I do not know what your motivations are, I do not know how serious you are about trying to turn your life around, Mr McAlister, but you were certainly behaving like a crook at that stage.  And I have grave concerns as to whether that continues.

15Your background might give reason for that.  You were born in Swan Hill, your parents separated when you were ten, your dad was a truckie.  I am told from the Bar table and accept that when you were around about 11 years of age, he tried to hang himself.  You discovered that and had to hold him up.  I accept that the odds are pretty high that you have probably got very powerful residual difficulties as a result of that.  In any event, your father started selling methamphetamine.  You realistically did not see him again until you were 18 or 19. 

16Due to your credit, you had started a diesel mechanic apprenticeship, you moved to Melbourne.  On the third year of that apprenticeship, it would seem during that time is when your problems really started.  You went to Batman TAFE and I understand you completed that apprenticeship.  Your mother became sick.  You went back and endeavoured to complete.  There is an indicator that you did complete your apprenticeship. Between the ages of 21 and 24, you were working. 

17At around the age of 19, you had met your father again.  It was at that point in time that you began assisting him and working with him in the apparently use of, and the trafficking of amphetamine.  And you have on occasion held jobs, you told, through the plea at least, that trafficking was to assist in source of income.  I am fully aware of the milieu in which all this took place and I must be honest, that drug traffickers who find themselves in this situation such as
Mr Booby, do not exactly excite my sympathy.  It is a bit of a business overhead.  But the fact of the matter remains that you cannot do what you did.  And despite Mr Booby's failings in this world, he is certainly entitled not to be treated and terrified such a way over such an extended period.

18The prospects of your rehabilitation are really up to you and you are still a relatively young person, you are only 29.  The risk of your reoffending is described by corrections as high.  You will be undergoing - and have been in custody in protection during your sentence so far and I accept that. Your counsel has raised queries about your eligibility for parole and I sympathise greatly with his concerns, but that is an area that I am simply not allowed to go into.

19You realistically, are still a young man and will just have to get your act together.  The offending is serious, despite all the derogatory comments I have made about Mr Booby.  It calls for the application of general deterrence, obviously.  And in your case, I think very much specific deterrence, denunciation and appropriate punishment may be somewhat lesser than might happen in the normal course of events.  I am not taking the view that the appropriate sentence for you is a head sentence with a non-parole period. 

20I am concerned that when you were interviewed by corrections, I had been told through your counsel, you are going to go live with your grandparents and work on the farm and inherit it.  You have told corrections that you are going to live with your parents in Swan Hill, right back in the milieu in which all this commenced.  It gives me little confidence. 

21In any event, I have taken all those matters into account in terms of imposing a sentence and in all the circumstances of that, the best I can do.  As I have made clear to counsel during the course of this, it is a strange situation where the sentencing has to be done on four quite distinct factual bases and I have endeavoured to do it on the basis that is favourable to you as the circumstances allow. 

22Having said all that, on Charge 1, 18 months; on Charge 2, 18 months; on Charge 3, 18 months; on Charge 4, 12 months; on Charge 5, six months, and; on Charge 6, nine months.  Obviously there is a significant element of overlap in all this and I have therefore given much lesser cumulation than I would have done in other circumstances.  On each of the summary matters, you are sentenced to be imprisoned for one month.  I direct that each of those sentences be served concurrently with the overall sentence that I am imposing on the indictment.  On Charge 5, which is the theft of the motor vehicle, any licence to drive a motor - I can suspend, can't I?

23MR HAMMILL:  Yes, Your Honour.  You can. 

24HIS HONOUR:  Yes.  Any licence to drive a motor vehicle is suspended for a period of three months.  I see no point in virtuously stopping you driving when you ultimately are released.  However, I direct that six months of the sentence imposed on Charge 1, six months of the sentence imposed on Charge 3,
three months of the sentence imposed on Charge 4, two months of the sentence imposed on Charge 5, and three months of the sentence imposed on Charge 6, be served cumulatively upon each other and upon the sentence imposed on Charge 2.  That gives an effective head sentence of 38 months.  In all these circumstances, I direct that you serve a minimum term of 27 months before becoming eligible for parole.  I direct that 638 days be reckoned as having been served under this sentence. 

25Pursuant to s.6AAA of the Crimes Act, I say that but for your plea of guilty, even though I am aware it is a settled indictment - but for your plea of guilty, you would have been sentenced to be imprisoned for a period of five and a half years, with a minimum term of four years and three months.  Are there any other orders I have to make?  No other orders, Mr Mortley?

26MR MORTLEY:  No, Your Honour.

27HIS HONOUR:  All right, thank you.  Yes, thanks. 

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