Director of Public Prosecutions v McAteer

[2021] VCC 622

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-16-01363

DIRECTOR OF PUBLIC PROSECUTIONS

v

AIDAN McATEER

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	9 March 2021
DATE OF SENTENCE:	18 May 2021
CASE MAY BE CITED AS:	DPP v McAteer
MEDIUM NEUTRAL CITATION:	[2021] VCC 622

REASONS FOR SENTENCE

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Subject:  Criminal law

Catchwords:                 Contravention of CCO; non-compliance; further offending

Legislation Cited: Sentencing Act 1991 (Vic)

Cases Cited:

Sentence:  Community Correction Order confirmed; fine of $2,500.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Gahan	Office of Public Prosecutions
For the Offender	Mr B. O'Sullivan	Tony Hannebery Lawyers

HER HONOUR:

1Today I am dealing with contravention proceedings in relation to
Mr Aidan McAteer, effectively in relation to offending which took place on
26 May 2015.  He was sentenced by me on 13 June 2017 in relation to charges of aggravated burglary, criminal damage and committing an indictable offence whilst on bail.

2In relation to the aggravated burglary he received a sentence of 12 months imprisonment in combination with a two year Community Corrections Order, and it is that Community Corrections Order of which he is now said to be in breach.  So in terms of any re-sentencing exercise, should there be one, it effectively relates to that charge.

3The Corrections Order itself commenced on 4 June 2018, after the period of imprisonment had been served. As I understand it, certainly from the appearance today on behalf of Mr McAteer, the contravention is admitted and I am obliged, pursuant to s.83AS(2) of the Sentencing Act, to take into account his level of compliance with the Corrections Order that I imposed.

4It certainly appears, from the chronology with which I have been provided, that there were multiple, in theory, opportunities to breach; in fact, they commenced on 17 July 2018.  In the usual fairness of the Office of Corrections, opportunities are given to re-comply with any order, but it is not lost on me that he effectively was not charged with the contravention until after the expiry date, which is always unfortunate from a sentencing perspective.

5When I did sentence Mr McAteer way back in June of 2017 I had a range of reasons for taking the course that I did.  Those reasons are a matter of record and I have had recourse to my sentencing reasons of 13 June 2017.

6Certainly, from what I can see, I took into account his age at the time; his personal background in terms of having a father who had been a drug user and died when he was very young; that he maintained the support of his mother, a sibling and an aunt; that he changed education regularly as a young person and left school in Year 10 to enter the workforce and help provide for his family; that he had effectively worked consistently since leaving school as an employee and running his own business; that at various stages his life had been blighted by alcohol and drug use; and certainly the offending that was before me from 2015 was in the context of that drug use.

7Important factors at that time to the sentencing process were the fact that he is a father of four children and that he had a relatively limited prior history and my assessment of his prospects of rehabilitation at that time, which I assessed as being good.

8So what has changed since then, effectively, is the non-compliance with the order that I imposed and the fact that there has at least been one incident, also in circumstances of violence, in the intervening period.

9I have had recourse to the "Contravention of Community Corrections Order by Conditions and Further Offences Report".  I do not know whether "mixed bag"' is the right description, but there have been various levels of compliance.  Referencing that report, I am certainly told that his initial engagement on his order was positive.

10I am told that in July of 2018 he revealed that he had started his own carpentry business, but certainly believed that that would not impact on his ability to successfully complete the order.  Importantly, at that time, he had started getting access to his children, which I see as a high motivator for him to stay out of further trouble – he cannot look after the kids if he is locked up.  There seemed to have been what was described as an "attitudinal shift".  That changed when the worker changed.  It is not uncommon for there to be, on occasion, a working relationship which is not functional when allocated to a Corrections officer, and on change of Corrections officer so did his behaviour.

11In February of 2019, the report tells me that Mr McAteer was acknowledging that his performance on unpaid community work had not been good enough and he needed to improve.  Barriers were looked at, but really his barriers were trying to run his own business and trying to live up to the expectations he created for himself and, indeed, for his ex-partner and the children in maintaining the role of father.

12There was a circuit breaker effectively in his efforts when he received a sentence of 27 days imprisonment.  That would have been a stark reminder of the need to manage his behaviour or the risks associated with not doing so.  It does not seem to me there has been any trouble since then – noting that there is a pending matter which is contested.

13Importantly, he successfully completed drug and alcohol treatment.  That should stand him in good stead for the future.  Importantly, he completed programs to reduce offending and it is not lost on me – apart from the fact that he clearly dedicated himself to his working life rather than prioritising the order – that COVID-19 would have had to have interrupted also his ability to do the community work, so in terms of his level of compliance, it is better than "not all bad".

14In terms of my powers, I do have the powers to effectively cancel and
re-sentence. 

15By way of update in Mr McAteer's personal circumstances, I am told he is doing extremely well in his business.  The four children are back in his life.  He has access to them every Wednesday and most weekends and I am told he assists his ex-partner when called upon to do so.  His dedication to his business and his role as father should remain a motivator for Mr McAteer to stay out of trouble and, in all the circumstances, what I propose to do – rather than cancel and re-sentence – is to simply confirm the order.  It has expired and it seems to me the real punishment should be for the contravention itself.

16I am restricted by a maximum of three months imprisonment.  I have got no intention of returning him to the custodial setting, but his finances are such that I am attracted to imposing a significant financial penalty. 

17Mr O'Sullivan, there is no point in giving him the community work - he just will not manage it again with what he has got on his plate.  So, what are his financial circumstances?  Bearing in mind you described his business as "thriving".

18MR O'SULLIVAN:  Well, he's got capacity to pay a very considerable fine, Your Honour.  I haven't got his financials to hand but we discussed, you know, potential ranges of significant amounts and he would be more than capable of paying a fine, Your Honour.

19HER HONOUR:  All right.  Well, that's somewhat helpful.

20MR O'SULLIVAN:  I'm sorry.  If Your Honour would like me to approach to get perhaps a rough figure about his earnings I could do that, but certainly with time through Fines Victoria he would be able to pay a very significant fine.

21HER HONOUR:  All right.  Well, for the contravention he's convicted and fined the amount of $2,500.

22MR O'SULLIVAN:  Yes, Your Honour.

23HER HONOUR:  Section 6AAA, which I am obliged to give by virtue of that level of fine, is that but for his plea of guilty he would have looked at a two week period of imprisonment.

24MR O'SULLIVAN:  As Your Honour pleases.

25HER HONOUR:  All right.  Anything I've forgotten to do?  It does happen.

26MR GAHAN:  No, Your Honour.

27HER HONOUR:  All right.  Mr O'Sullivan?

28MR O'SULLIVAN:  No, Your Honour.

29HER HONOUR:  All right, thank you.  Mr McAteer, I don't want to see you again, all right?  Just focus on the business, focus on the kids.  Focus on life without the criminal justice system, all right?  But thank you for getting organised and getting Mr O'Sullivan here.  I'll stand down till 2.15.  Thank you very much.

30MR GAHAN:  As the court pleases.

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