Director of Public Prosecutions v McBride

[2024] VCC 2105

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-00521

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM McBRIDE

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2024
DATE OF SENTENCE:	19 December 2024
CASE MAY BE CITED AS:	DPP v McBride
MEDIUM NEUTRAL CITATION:	[2024] VCC 2105

REASONS FOR SENTENCE

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Subject:       Sentence- Criminal Law – Intentionally causing injury

Catchwords:   Intentionally causing injury – Six year  delay – Extraordinary delay -no criminal record –    rehabilitation during delay – 185 days remand

Cases   Cited: R v Nikodjevic [2004] VSCA 222

Sentence:   Four months imprisonment 120 days pre-sentence detention

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms G. McMaster	Office of Public Prosecutions
For the Accused	Ms M. O'Brien	Doogue George Lawyers

HIS HONOUR:

1Adam McBride, you have pleaded guilty to a single charge of intentionally causing injury.  It carries a maximum penalty of 10 years' imprisonment.  You do not have any prior convictions and you do not have anything subsequent either.  Both those facts are significant, particularly the latter, when the court reflects on the date of the commission of the offences, which was 4 June 2018.  I am not going to descend into detail as to what has transpired between 4 June 2018 and the present.  Significantly, you spent 185 days in custody closer to that time, but the lengthy history is set out helpfully in Exhibit D, which is the chronology and that forms part of these Reasons for Sentence. 

2In addition to the period you spent in custody, you have been on bail for a long time subsequent to that and supported bail part of the way.  There has been a number of reports filed in the matter, a number of which were in relation to a fitness to plead hearing, and that was an extended process that caused some delays in the matter as well because there were delays in finalising that, in getting reports and then revisiting matters that needed to be revisited in light of some of the reports, and then ultimately it came before me and my ruling explains the position at that time. I made the conclusion that you were fit to stand trial, but I made the observation that that was not to say that you were not very unwell.

3The other delays, as Ms McMaster has alluded to, were completely beyond the control of this Court and beyond the control of any party and that was to do with the COVID pandemic, but also the Court of Appeal and High Court decisions of Alec and Smith and the transcripts of this matter will go into that background.  Six and a half years is an extraordinary delay for matters concluding in this court and principles in relation to how delay is relevant to sentence indicate that there are at least a couple of ways that delay is relevant.  One is if there is demonstrated rehabilitation, or the effects of delay have changed the personal circumstances of the person. 

4It is significant that there has been no offending in that period.  You have also served a period of 185 days on remand in relation to the matter.  You have also, I am told, and I accept, abstained from alcohol in that time.  You are living with your family.  You are getting treatment in relation to mental health issues and endeavouring to obtain some stability in relation to that, and I have relied amongst other things on the recent letter of Mr Fong.  But all of the materials filed before me, including the report of Mr Simmons, the NDIS plan, the reports of Dr Rakov, the letters from Dr Fong, the letter from your parents and the letters from Peter Lane and Alana Thorpe which have been referred to, all of these matters give me a picture of where you are now as opposed to where you were six and a half years ago.

5It is also significant in considering delay, that you have had the matter hanging over your head for those six and a half years and that has a punitive aspect to it as well that has been recognised in cases such as Nikodjevic and others.  So that is the most significant sentencing factor in mitigation in your case.  I have got to have regard to the objective gravity of the offending and the objective gravity for an offence of intentionally causing injury.  This is a serious example. 

6As Ms McMaster has summarised, it was a sustained attack.  It was nasty, it was vicious.  It involved the use of weapons to hand, and it had a significant impact upon Ms Butler and a continuing impact.  She continues to be in fear, as the victim impact statement made clear.  But I am satisfied on everything before me, and based on the support you have from your parents, who have been present throughout, they are present here today, and based on all the materials before me and your appearances before me over several years now, and in particular based on the record, that you do not pose a threat so long as you continue to be remorseful and continue on the path of rehabilitation that you appear to be on, which for you principally includes abstaining from alcohol, engaging with the treatments and supports available to you through the NDIS and other medical professionals and pursuing those prosocial interests such as the ‘Mixed Nuts’ film group and the matters referred to by Mr Lane.

7But getting back to the objective gravity of the offending, the community abhors that sort of offending and courts must denounce that conduct by the sentences imposed.  The courts must also deter others.  I am quite satisfied that specific deterrence is not a prominent factor in your case, but violence against women, particularly in the context of the sustained, nasty and brutish way you acted on this day, has to be denounced and the injuries to Ms Butler at the time, but also the ongoing impacts, have to be understood and taken into account and I do so.

8You had no prior convictions and Courts are very reluctant to impose custodial terms for first timers through the courts unless the criminal conduct calls for it and leaves no other option.  Were you being dealt with much closer to the time, it would have been a sentence of imprisonment and a lengthier one than what I am about to impose.  I have taken into account the very helpful submissions of Ms O'Brien.  I have also been assisted by the helpful written outline and oral submissions of Ms McMaster in relation to this matter.  At your age, 42 years of age, and no prior matters and no subsequent matters, it is time to put this matter to rest and impose a sentence that reflects all of the sentencing factors that I must.

9I take into account your plea of guilty.  I consider that notwithstanding the stage we are at, that has some significance in the sentencing exercise and your sentence is discounted accordingly.  I have also taken into account in an holistic way what I understand about your mental health issues and your functioning, and there are some signs that those sort of features were present at the time, and I particularly note what Ms O'Brien has submitted in relation to your response to what happened on the day and when you were arrested you were deemed unfit to interview due to a suicide attempt.

10You were conveyed to hospital where you remained under police guard.  There has been ongoing stresses and experiences in relation to court attendances over that period of time, as there have, I should note, in a very significant way for your victim.  When I take all of these matters into account and, as best I am able to, all of the sentencing considerations I must, and in particular turn my mind to whether a community correction order from this point forward is the preferable option, I must also consider that correction orders are onerous.

11Even without conditions, they have a punitive aspect because you are under the court supervision for a period of time, but they only work if there is consent to them.  You have indicated what your position is in relation to a community correction order and that therefore leads me to consider appropriate alternatives, and this is a matter which even at this late stage, some six and a half years down the track, has sufficient gravity to it, that even for a first-time offender before the court and someone who has no subsequent matters, prison is not inappropriate.

Sentence

12Weighing up all the matters as best I am able to, giving particular regard to general deterrence and denunciation, but also particular regard to the effects of delay as I have outlined, and regard to the overall period you have served in custody, taking that into account also, on the charge of intentionally causing injury, I sentence you to four months' imprisonment. I declare that pursuant to s18 of the Sentencing Act with the period that was served is four months, or 120 days if that is the way it has to be recorded, you do have time in excess of that. 

13I do not know that it makes sense for me to indicate a presentence detention that exceeds the four months.  Not often in that situation, I do not know.  Pursuant to s6AAA, were this a plea of not guilty, I would have sentenced you to a 12 months' sentence with a non-parole period of six months.  I make the disposal order that is sought and so in the break I reflected on the gravity of the offending and since the break took into account the submissions of Ms McMaster and determined that four months is the appropriate sentence for this matter.

14Now, is there anything that is unclear about that?

15MS McMASTER:  No, Your Honour.

16MS O'BRIEN:  No, Your Honour.

17HIS HONOUR:  All right, well that is the end of the matter, Mr McBride, and
Ms Butler that is the end of the matter from the court's involvement.  We will adjourn the court.

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