Director of Public Prosecutions v McBain

[2022] VCC 1382

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-02314

CR 21-02315

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

SHELLEY McBAIN

JESSICA STREBS

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JUDGE:	HER HONOUR JUDGE HAWKINS
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2022, 2 August 2022
DATE OF SENTENCE:	8 August 2022
CASE MAY BE CITED AS:	DPP v McBain & Anor
MEDIUM NEUTRAL CITATION:	[2022] VCC 1382

REASONS FOR SENTENCE

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Subject:Criminal Law - SENTENCING

Catchwords:              Common law assault – intentionally damaging property – commit indictable offence whilst on bail – 2 co-accused – mother and daughter – acquired brain injury – COVID 19 considerations – Worboyes’ – Verdins’ – guarded prospects of rehabilitation.

Legislation Cited:      Crimes Act 1958 (Vic), s320, s197(1); Sentencing Act 1991 (Vic), s5, s18, s6AAA.

Cases Cited:R v Verdins [2007] VSCA 102; Worboyes v The Queen [2021]
VSCA 169.

Sentence:Shelley McBain sentenced a total effective sentence of 10 months’ imprisonment – s6AAA declaration of 18 months’ imprisonment with a non-parole period of 12 months; Jessica Strebs sentenced a total effective sentence of 7 months’ – s6AAA declaration of 15 months’ imprisonment with a non-parole period of 9 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Alexander	Office of Public Prosecutions
For Accused McBain	Mr R. Alexander	Buscombe Madden Lawyers
For Accused Strebs	Mr J. Mortley & Ms L. Cao	Law & Advocacy Centre for Women

HER HONOUR:

1Jessica Strebs and Shelly McBain, each of you have pleaded guilty to:

·one charge of common law assault; and

·one charge of intentionally damaging property.

2Jessica Strebs, you have also pleaded guilty to the summary offence of commit indictable offence whilst on bail.

3You have each admitted your prior criminal histories.[1]

[1]Exhibit P2 (McBain); Exhibit P3 (Strebs)

4The maximum penalty for Charge 1, common law assault, is Level 6 imprisonment (5 years’ maximum) pursuant to s320 of the
Crimes Act 1958.

5The maximum penalty for Charge 2, criminal damage, is Level 5 imprisonment (10 years’ maximum) pursuant to s197(1) of the Crimes Act 1958.

6The maximum penalty for Summary Charge 5, which is applicable to Ms Strebs alone, commit indictable offence whilst on bail, is 30 penalty units or
three months’ imprisonment.

Circumstances of Offending

7The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 26 July 2022,[2] the accuracy of which you have both accepted through your counsel. 

[2]Exhibit P1

Nature & Gravity of Offending

8Ms Strebs and Ms McBain, you both claim that a couple of days prior to your offending you were assaulted by the complainant, Zanda Green, in this matter. You did not, however, report that incident to police and it appears that there is a long history of animosity between you both and the complainant.

9The incident which forms the subject of this offending occurred at 2 am in the middle of the night when the complainant was audibly distressed after finding that her partner had left.  She heard you both mocking her reaction and she went to her niece’s house to call police.  As she left she encountered you,
Ms McBain, and you threatened to bash her with a hard object, possibly a cricket bat.  Ms Strebs, you joined Ms McBain and threw a couple of aluminium posts at Ms Green and you both abused her.  She was forced to run for shelter at her niece’s house and both of you took the opportunity to smash the windows of her house.

10After calling Triple 0 and waiting for about one hour, Ms Green returned to her house. You both returned, yelling, 'Come out and fight you weak cunt',[3] and again began smashing windows whilst she was inside. Ms Strebs, you climbed onto the frame of the lounge room window, saying 'You’re fucked you cunt',[4] and you were holding what looked like a golf club. It is not put that Ms Strebs actually entered the unit but Ms Green was forced to hold up a chair and yell that she had called police. You ultimately smashed some five windows in her lounge room and at least two others.

[3]Exhibit P1

[4]Exhibit P1

11Ms Green has not supplied a victim impact statement but was cross-examined at committal about the incident.

12This is a violent neighbourhood dispute.  Ms Strebs, you chose not to report
Ms Green’s alleged prior assault on you to police. Previous animosity can never justify taking matters into your own hands and metering out retribution in the form of an assault or of smashing up your neighbour’s house.  I conclude that this is a moderately serious example of this type of offending and both general and specific deterrence loom large in this case.

Personal Circumstances

13Jessica Strebs, you are 28 years of age, and were raised in Ballarat and Warrnambool.  Your father left the family when you were 13 and after that, you recalled that your mother, 'Went downhill and took off on us kids with other men'.[5] You attended four different primary schools and left school at Year 8 to look after your younger brothers after your parents left.  You were briefly employed at Hungry Jack's at age 14.

[5]Written Outline of Submissions on Plea in Mitigation on behalf of Ms Strebs dated 26 July 2022

14You commenced absuing substances, including alcohol, cannabis, methamphetamine and heroin from age 16.  You spent three days unconscious in intensive care due to a drug overdose at aged 18.  You also suffered a head injury in a car accident.

15You have a history of childhood trauma, anxiety and depression. Neuropsychologist, Dr Kathryn Hoskin, in her report dated 24 June 2019, assessed that you to have an IQ of 74, which is borderline.[6]  She noted that your summary score was not meaningful, given that the subtest scores varied widely between the average range and the extremely low ‘intellectually disabled’ range.  I take into account this history and your diagnosis in sentencing you, Ms Strebs.

[6]Exhibit B2

16You have four children, aged ten, six, five and one and are due to give birth to your fifth child in the next few weeks.  None of your children are presently in your care.

17You have been in an, 'on again, off again' relationship since 2014 with
Matthew Pring, who is the father of two of your children.  That relationship is marred by substance abuse and family violence.  'The Orange Door', family violence hub confirms that they have had 18 separate involvements with you since they opened in October 2020.  They assess that your safety and stability continue to be placed at significant risk in relation to the family violence perpetrated against you and that this is having a significant impact on you and your children.  The Orange Door have provided urgent support and safety assistance.

18You have supports in place when you are released from custody, including secure accommodation, a support worker from Berry Street and from
'Mum & Bub mental health unit’, and you have plans to obtain NDIS funding and assistance.  Your future goals are to remain clean from illicit substances and to be a 'good mum'.

19You have an extensive criminal record including a sentence of 590 days' imprisonment in 2019 for aggravated burglary, theft and assaulting a custodial officer on duty.  You were on bail at the time of this offending.

20Whilst you have good supports in place, given your prior record, your prospects of rehabilitation must be viewed as guarded at best.

21Ms Strebs, you were remanded in custody on 8 February 2021 and bailed on
28 October 2021.  You have 173 days of pre-sentence detention referrable to this matter.

22Shelly McBain, you are 46 years of age and you were born in Melbourne and attended school to Year 10.  You have three children, including Jessica, who is your co-accused in this matter.  You separated from the children's father in about 2007 and your mental health and lifestyle deteriorated thereafter.

23You were on the Court Integrated Support Program at the Magistrates’ Court in Ballarat between 28 April and 26 October 2021.  Your final CISP report, dated
26 October 2021, discloses a diagnosis of depression, that you suffer from
post-traumatic stress disorder and that you have sustained an acquired brain injury as a result of family violence from a former partner.  You are prescribed antidepressants and receive monthly injections of Suboxone.

24CISP assisted you to receive services under a National Disability Insurance Scheme plan and you are in receipt of a disability support pension as a result of your brain injury.[7]  At the time of the final report, you were receiving psychosocial recovery coaching and had contact with your support worker

[7]See Exhibit A1; Exhibit A2

[8]Exhibit A1

two to three times per week.  Louise Merrett, case manager from CISP, reported that you appeared calm and well organised and appeared much more able to manage than in your past.[8]  Your drug and alcohol issues were well stabilised since commencing on monthly injections of Sublocade.

25Ms McBain, I note that your counsel has filed further submissions in respect of this plea dated 5 August 2022.  I note that Ms Merrett from CISP is maintaining some contact with you, Ms McBain, and what Mr Alexander has made me aware of since the last plea is that you continue to receive monthly
Suboxone injections to assist you to abstain from heroin.  

26You see Rebecca Egan, a provisional psychologist, at Clear Thinking Mental Health Group in Ballarat monthly.  You have missed your previous two appointments with her but you have one coming up shortly.  You also see Coralie Holding, a nurse practitioner at Clear Thinking, to assist with both your mental health and alcohol and drug treatment.  Unfortunately you missed your last appointment due to COVID-19, but you are also supported by your support worker, Sharon, under your NDIS plan. Sharon attends your home twice per week to assist with household tasks, shopping and the like.

27Ms McBain, I accept your counsel’s submissions that these ongoing supports are essential to your rehabilitation.

28Unfortunately, however, there is no psychological material tendered on this plea to permit the Court to conclude that you have a cognitive impairment as a result of your brain injury. Your counsel concedes that he is therefore not able to advance any compelling argument in support of Verdins considerations.[9] He does, however, submit that the Court should afford, and I will afford, a measure of amelioration of sentence having regard to your previous diagnoses and the other matters to which I have referred.

[9]R v Verdins [2007] VSCA 102

29Ms McBain, you have a significant history of polysubstance abuse and appear to have engaged with some therapeutic interventions to address this.

30I also note that at the time of this offending you were on a 12 month community corrections order and that this offending has apparently occurred in breach of that order.

31You have an extensive criminal record, principally for shop theft and other dishonesty related offending, but also for violence in 2015 and in your younger years.  You have undergone several periods of imprisonment throughout your life.

32Your counsel concedes, and I accept, that given your substantial criminal history and the aggravation of your offending whilst on that community corrections order, your prospects of rehabilitation must be viewed as guarded.  The supports provided under your NDIS plan, through The Orange Door, the mental health service providers and CISP are essential to your prospects of rehabilitation.  I expect that they will endure upon your release from custody.

33Ms McBain, your counsel has submitted that a term of imprisonment equivalent to your pre-sentence detention is a just sentence in all of the circumstances.  I must consider some factors in relation to that submission.

Sentencing Considerations/Matters in Mitigation

Plea of Guilty

34Ms McBain and Ms Strebs, in your respective records of interview you both admitted your involvement in a confrontation with the victim, however, denied involvement in assaulting her or causing damage to her house. 

35You both pleaded guilty on 23 May 2022 following a case conference at this Court the previous month.  This followed a contested committal hearing listed on 28 October 2021, at which the victim was cross-examined.  In so doing, you avoided the need for a trial in this case, saved witnesses the stress of giving further evidence in Court and avoided the use of public resources that would have otherwise been spent in conducting a trial. I note that these resources are extraordinarily stretched due to the pandemic and, accordingly, I take the significant utilitarian value of your plea of guilty into account in accordance with the principles in Worboyes case.[10]

[10]Worboyes v The Queen [2021] VSCA 169

36I have regard to current sentencing practices for offences of this type.

37Given the gravity of your offending and having regard to the sentencing principles set out in s5 of the Sentencing Act 1991 (Vic), I conclude that a term of imprisonment is just for both of you. It is necessary to reinforce to you both and to the community more broadly, that you must not take justice into your own hands.

38Your respective roles in the offending were the same and in determining your respective sentences, I note that the Court has evidence of Ms Strebs’
cognitive deficits and other conditions, that she is younger than you,
Ms McBain, and is also about to give birth to her fifth child.  I take these matters into account in determining your respective sentences.

Sentence

39Shelley McBain, I sentence you as follows:

40On Charge 1, common law assault, you are convicted and sentenced to
seven months' imprisonment.  This is the base sentence;

41On Charge 2, criminal damage, you are convicted and sentenced to
three months' imprisonment.

42These terms are to be served cumulatively.  That is, the total effective sentence you will serve is 10 months' imprisonment.

43Jessica Strebs, I sentence you as follows:

44On Charge 1, common law assault, you are convicted and sentenced to
six months' imprisonment.  This is the base sentence;

45On Charge 2, criminal damage, you are convicted and sentenced to
three months' imprisonment.  These terms are to be served concurrently;

46On Summary Charge 5, commit indicatable offence whilst on bail, you are convicted and sentenced to one month's imprisonment.  This term is to be served cumulatively, or, on top of your base sentence.

47Your total effective sentence is seven months' imprisonment. 

Pre-Sentence Detention

48Ms McBain, pursuant to s18 of the Sentencing Act 1991 (Vic), the period of
82 days of pre-sentence detention, not including today, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered into the Court records.

49Ms Strebs, pursuant to s18 of the Sentencing Act 1991 (Vic), the period of
173 days of pre-sentence detention, not including today, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered into the Court records.

Section 6AAA Declaration

50Pursuant to section 6AAA of the Sentencing Act 1991 (Vic), I indicate that had you pleaded not guilty and been found guilty after trial, Ms McBain, I would have sentenced you to a term of 18 months' imprisonment with a non-parole period of 12 months.

51Ms Strebs, I would have sentence you to a term of
15 months' imprisonment with a non-parole period of nine months.

Ancillary Orders

52I make the forfeiture order sought by consent.

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