Director of Public Prosecutions v McAsey
[2022] VCC 503
•6 April 2022
| IN THE COUNTY COURT OF VICTORIA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-19-01353
J13357373
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WARREN MCASEY |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 31 March 2022, 1 April 2022, 4 April 2022 | |
DATE OF PLEA: | 5 April 2022 | |
DATE OF SENTENCE: | 6 April 2022 | |
CASE MAY BE CITED AS: | DPP v McAsey | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 503 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE
Catchwords: Guilty by jury verdict - Attempted armed robbery
Legislation Cited: Crimes Act 1958 s 321M, Sentencing Act 1991 s 18
Cases Cited:Boulton v the Queen [2014] VSCA 342
Sentence:Convicted and sentenced to 57 days imprisonment combined with a 15-month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N. Batten | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr I. Polak | Kurnai Legal Practice |
HIS HONOUR:
1 Warren McAsey, on 4 April, following a trial where the evidence occupied two days, you were found guilty by jury verdict of attempted armed robbery.
2 I sentence you on the following facts.
3 Kerry and Heather Kelly were the owners of Home Straight Takeaway, which is in an industrial area of Morwell amongst several factories.
4 At 2.50 am on 22 November 2018, they arrived at their business and entered through a back door which they did not lock behind them because they were expecting to receive deliveries. At 3.40 am, you entered through the unlocked back door wearing a distinctive dark‑coloured hat with ear flaps and fur trimmings and a facial disguise. You were armed with a long black metal pole.
5 After a few minutes, you entered the front shop area where Kerry Kelly was cooking food on a grill. Mr Kelly turned around to see you with your face covered. He saw you holding a metal rod in a way that made it appear to be a firearm. He looked at the item and realised it was not a gun. He said, in evidence, that he was familiar with firearms and that the only firearm it could have been was a shotgun and he realised it was not a shotgun.
6 You were holding a bag which it seems you obtained from inside the premises. You made a demand that Mr Kelly put cash in the bag, which you deposited on the floor of the shop. Mr Kelly then rushed at you and wrestled the metal pole from you and pushed you out the back door.
7 Heather Kelly overheard the altercation and came out and she saw the wrestling and then saw her husband pushing you out the back door. You left behind the blue Aldi bag and the long black metal pole. The metal pole was the lower shaft of a Talon Eagle Super Trimmer with the branding on the shaft covered by black tape.
8 Police examined the item and two fingerprints were developed on the sticky side of the black tape. One of those fingerprints was identified as coming from your right ring finger.
9 Part of the incident is shown on CCTV footage which captures the back door area of the business. This footage was played in the trial. The items that you were wearing, including the hat with ear flaps, can be seen on the footage.
10 On 27 December, police executed a search warrant at your address where they located a dark‑coloured hat with ear flaps and fur trimmings, the top section of a Talon brand whipper snipper, but not the lower shaft, and pieces of black tape with the same measurements as the black tape on the metal rod.
11 When interviewed, you denied the offending. You said that about a month earlier someone had been inside your shed. You said you had run outside and yelled at this person who jumped over the backside fence. You said you noticed some items were missing from the shed. You said that the person who had attended your shed had probably removed the shaft of the Talon Eagle Super Trimmer.
12 The prosecution case was circumstantial based on the fingerprint on the sticky side of the tape, which provided evidence that the person who had put the tape on the metal shaft had done so for the purposes of making the shaft look like a firearm. Your fingerprint was strong evidence in the trial that it was you who had taped up the metal rod and that is, in the end, what the jury found, in my view.
13 Additional pieces of circumstantial evidence were provided by the distinctive hat with the earflaps and the fur trimming and the black tape in the same measurements as that which was on the rod. You also fit the same height description as given by Mr and Mrs Kelly in the case.
14 Now, turning to the victim impact in this case, Kerry Kelly and Heather Kelly declined to make victim impact statements. I will return to this, but they appear to be robust victims who were not unduly affected by your conduct.
15 Turning to the seriousness of this offence, attempted armed robbery is a serious offence as reflected in the maximum penalty of 20 years. Had you succeeded in this offence, it would have been an armed robbery, a Category 2 offence, which would mean I would have little option but to impose a period of imprisonment. Because this is an attempted armed robbery and I am not constrained in sentencing by those provisions of the Sentencing Act.
16 Assessing this offence, in my opinion, it does fall towards the lower end of the spectrum for such offences. The offending here was amateurish and incompetent. Mr Kelly easily saw through your attempt to present the metal pole as a firearm. In Mr Kelly and his wife, Heather, your victims were robust and not greatly affected by your bungled attempt to obtain cash from them. This was really a matter of luck. Your victims could easily have been people who suffered significant psychological damage as a result of your offending.
17 There was some preparation and planning involved in this offence. It was you who wrapped the black tape around the branding on the pole to give the appearance of a firearm. You must have decided, ahead of the time, the target for this offence, given you attended in the middle of the night and entered through an unlocked back door. You must have known it was possible to enter those premises via the back door and that there was likely to be some cash on the premises.
18 Although there was some planning and preparation, whatever plan you had was poorly executed. For example, it seems you did not take a bag with you and grabbed one from inside the shop.
19 I do not know why you committed this offence; you pleaded not guilty. You are not to be punished for that, but you cannot benefit from the mitigation afforded by a guilty plea. There is no basis here for a finding of remorse.
20 As to your motive, there was material in the depositions from a witness, Mr McKenzie, indicating that you had little work around the time of this offence. It seems likely you were experiencing some level of financial desperation.
21 Turning to your personal circumstances, you are now 54 years old. You live in Morwell with your partner, Linda Evans. You have been in a relationship with Ms Evans since 2010. You were born and you grew up in Yea in rural Victoria. Both your parents are now deceased. You have three siblings who live in other parts of Australia. You have limited contact with them. You left school at the end of Form 4.
22 I was told by Mr Polak that you then worked for Nilex in car part manufacturing. After that you worked in electrical wholesaling in both Melbourne and Darwin.
23 You were in a relationship from the age of 18 until you were 35. You had no children in that relationship. You have no children with Ms Evans. You knew Ms Evans back when you were a teenager. Apparently, you went out for a period at that stage. You met up again many years later and started a relationship. You got married in 2013. Ms Evans has two children aged 32 and 30 and she also has three grandchildren.
24 In 2016 in Darwin, you were placed on a suspended sentence for indecent dealing with a child. That offence was committed back in 2005. At the time you were charged with that offence, you were living in Victoria. You were granted bail to go back to Darwin to have the matter heard. You pleaded guilty and, in addition to the suspend sentence, you were placed on the sex offenders register for a period of eight years. Apparently, you were not aware of this until you returned to Morwell when the police contacted you about your status as a registered sex offender. As a result of being on the register, you are not allowed to have any contact with Ms Evans' grandchildren, nor do you have any real contact with her children.
25 The previous offence itself is of a different nature to this matter. It is not urged upon me that I should give it any significant weight in sentencing. Of course, you do not come before the court as a person with an unblemished record.
26 Ms Evans gave evidence on the plea and indicated that you have become isolated as a result of being on the register and because you have had now a significant period of unemployment. You have apparently also felt under pressure because of being charged with this offence. You have lost self-esteem because you have not been working. You have also been suffering from depression.
27 Ms Evans gave evidence she suggested you see a psychologist and you have been doing that now over the last 18 months. The psychologist you see is Ms Lee Minton. Mr Polak indicated you take Prozac for your depression.
28 You spent some 57 days in custody between 27 December 2018 and 21 February 2019 when you were granted bail in the Supreme Court. Mr Polak told me that because of your status as a registered sex offender, you were moved from the MAP to Ararat during that period of remand. Those two months are the only period in your life you have spent in custody.
29 Mr Polak submitted that a community correction order was within the range of appropriate sentences. The prosecutor, Mr Batten, submitted that a combination sentence of imprisonment and a community correction order was open. In that context, he submitted that the 57 days of presentence detention combined with a correction order was also within the range of appropriate sentences.
30 Accordingly, I had you assessed for a community correction order. I have received that report from Mr Black this morning which indicates you are suitable for such an order. I have also heard from Mr Black over a video link this morning and he indicated that because of the serious nature of the offending in this jurisdiction, he did ultimately recommend supervision and a condition relating to your mental health. I am told that community work teams recommence in early May, so there is no impediment to you completing a reasonably significant number of hours.
31 There has been some delay in this matter coming to trial. No doubt that is because of the suspension of jury trials during the pandemic. Of course, you could have pleaded guilty to these offences, but you maintain your innocence in relation to this matter. Nonetheless, I take into account the time you have been waiting for this matter to be dealt with as increasing the pressure on you of a pending serious matter. I also understand there has been no further offending since this matter was committed in 2018.
32 In sentencing you, I must have regard to general deterrence, that is the need to deter other people who might be minded to commit offences such as this; specific deterrence, that is the need to send a message to you that conduct of this nature will not be tolerated. I must also have regard to just punishment and I must denounce your offending. I must also have regard to the need to facilitate your rehabilitation.
33 Having regard to all these matters and the submissions of the parties and the need to apply the parsimony principle in sentencing, I have decided that a combined order of imprisonment and a community correction order reconciles the competing sentencing factors in this case.
34 In coming to that view, I am mindful of the lower objective gravity of the offending in this case. I have also asked myself the question posed in the case of Boulton: Given that a community correction order could be imposed for a period of years with conditions attached which could be both punitive and rehabilitative, is there any feature of the offence or the offender which requires the conclusion that imprisonment with all its disadvantages is the only option?
35 I must say, Mr McAsey, I was initially inclined to give you a further period of imprisonment for this offending, but having heard the submissions of the parties in the case and the plea of Mr Polak, I have decided to give you a combined order.
36 The orders that I will make are that you are sentenced to 57 days - I will just confirm that is the correct - that is correct, yes, 57 days imprisonment. I will be deducting 57 days from that period of imprisonment as having been served pursuant to s 18 of the Sentencing Act.
37 I have decided to put you on a Community Correction Order for a period of 15 months with the following special conditions: supervision, mental health programs, as directed, and 300 hours of community work.
38 In the circumstances of this case, I am not satisfied that 57 days alone represents a significant enough punitive outcome and I am of the view that a substantial number of community work hours need to be performed in this case, so am I giving you 300 hours of community work.
39 You have heard Mr Black this morning, over the next month you can do work at home and then the community work terms recommence and you can perform those hours.
40 I will make an order that 40 hours of any program conditions and, in your case, that is the mental health, can be deducted from the community work I have ordered you to perform. This is, obviously, all with conviction, Mr McAsey. So those are the orders that I intend to make. I will make the ancillary orders sought that were not opposed in this case.
41 Now, you have to consent to this, Mr McAsey. I should tell you this: there is a number of conditions that attach to all community correction orders. In your case, there is the supervision, the community work and the mental health programs. In addition to that, there is a range of core conditions.
42 Those include that if you change your address, you have to tell Corrections, if you want to leave Victoria, you have to tell Corrections, if you get a job and you change jobs, you have to tell Corrections, you have to obey all their lawful instructions, you have to accept visits and attend, as required, by them and you have to attend within 48 hours of today at Corrections. That is the first condition, Mr McAsey. If you commit another offence punishable by imprisonment over the next 15 months, that is also a breach of the order. Do you follow all of that?
43 OFFENDER: Yes, Your Honour.
44 HIS HONOUR: All right. Now, if you breach the order, there is a range of options, but the obvious one that would loom large would be that I vacate all the orders that I have made today, including the prison sentences, and I go back and I start again; I resentence you. You would get your 57 days again, but it is highly likely that you would have to serve a further period of imprisonment.
45 I am giving you a chance. You ran a trial here on attempted armed robbery and this might be seen as lenient, but in all the circumstances and given the submissions of the parties, I am prepared to allow you to remain in the community for 15 months, but only on the conditions that I have outlined. And if you breach the order, then obviously I will hear the circumstances of that, but you would be at very real risk of going back into custody. Do you understand?
46 OFFENDER: Yes, Your Honour.
47 HIS HONOUR: Do you consent to this order?
48 OFFENDER: Yes, Your Honour.
49 HIS HONOUR: All right. I will sign the order and then - all right. It is the first one I have done live for a while. All right. We will just get you to sign that. Any other orders I need to make in this case?
50 MR BATTEN: No, Your Honour.
51 HIS HONOUR: All right. Thanks.
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