Director of Public Prosecutions v McCallum

[2018] VCC 1176

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR 17-01362

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEORGIA MCCALLUM

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Shepparton
DATE OF HEARING:
DATE OF SENTENCE:	1 August 2018
CASE MAY BE CITED AS:	DPP v McCallum
MEDIUM NEUTRAL CITATION:	[2018] VCC 1176

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 C. Pearson

HIS HONOUR:

1Georgia Kate McCallum, you have pleaded guilty to one charge of robbery and one charge of possession of an unregistered general category handgun.  Those crimes carry maximum penalties of 15 years and four years respectively.  You are now 23 years of age and you were 21 years of age at the time of the offending.  You have pleaded guilty to a settled indictment and therefore must get the benefit of that plea of guilty.  You made significant admissions to police when interviewed and I accept that in these circumstances there is now at least appropriate remorse.  You must also of course get the utilitarian benefit of that plea of guilty. 

2You have no prior convictions and that is of some comfort to a sentencing judge in terms of the prospects of your rehabilitation.  You do have subsequent matters for which you served a period of time in prison and for which you are now on a community corrections order.  They involve trafficking in amphetamine and that would appear to be part and parcel of the life that you were living over a period of a year or so.  I am not going to go into the detail of how that trafficking came about or the circumstances of it and of course difficulties later on.  But I accept that you were in a milieu and you were with a much older man and in those circumstances you, I accept from the Bar table and from the reports that have been provided, were using pretty heavily.

3Firstly, pursuant to s.464ZF of the Crimes Act I make an order that you provide a saliva sample for DNA purposes.  That order having been made I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you and your counsel will explain to you what you may need to do in relation to that.

4Insofar as the offending is concerned you are one of the number of accused people in this matter and the Crown very sensibly tendered and is now an exhibit the opening in relation to it which means I do not have to go into any great detail at all.

5Back in October of 2016 you were in a relationship with a much older man and were using amphetamine as was it would seem so was he.  In the circumstances of that another person was believed to have given the older man up to police and it was arranged that the complainant, that is, Mr Booby, be drawn to a house, which he was, in Mistletoe Street.  That was on the understanding that he was now going to pick up drugs.  When he arrived at the house Mr Gray opened the door and the complainant went inside.  He was assaulted significantly, falsely imprisoned over an extended period of time. 

6You, it is accepted, were not present during the assault but came from the front room of the house and took some keys from the complainant's pocket and I interpolate you would have seen the condition he was in and went outside to his car.  You there got a black bag and some police charge sheets which you handed to Mr Gray.  You left the room and returned with a black baseball bat which obviously also came from the car and indeed belonged to the complainant. 

7Mr Gray then put the phone, a mobile phone, out of the black bag and asked for access codes.  The man was again assaulted.  Or course by this stage the robbery for which you have pleaded guilty is complete. 

8Again, he was treated fairly unkindly thereafter and there is a question of a gun being used and all sorts  of things and those matters of course do not relate to you. 

9As I understand it, it is accepted that there was $2,800 cash located in the complainant's bag.  How much of that was going to be - he believed he was going to spend on drugs, I do not know.  But in any event those matters were in effect stolen by you, knowing that the man was being physically assaulted and restrained at that time.  That gives rise to the charge of robbery.  Robbery is in those sort of circumstances always serious but I must be careful only to sentence you for the role that the Crown accept for this purposes that you played in it. 

10As I said, a firearm was apparently used during the course of all this and when you were interviewed by police some day or so later you indicated that you had seen such a firearm but it had been many months previously and you had only handled it effectively momentarily.  Accordingly that charge is very much at the lower end.

11I do not think I need to go into the detail of all this any further.  It is a situation which sometimes arises where the drug deal goes wrong for the complainant. You cannot do what you did and there has to be proper sentence applied but as I say, I think I have already said, there is a milieu in which all this takes place.

12The Crown submit that an active custodial sentence is appropriate and I have no reason to argue with that and indeed your counsel says the same.  What has occurred is that subsequent to this offending you were remanded in July of 2017 and kept in custody for a period of 157 days. 

13When you were ultimately sentenced in May of this year by Magistrate Bentley who sentenced you to 90 days' imprisonment which was declared and that leaves 67 days' imprisonment for this matter.  In effect, you had 158 days pre-sentence detention on this particular matter before His Honour dealt with you.  His Honour has also, having put you on a community corrections order, going to have judicial monitoring in two or three weeks and being aware of his success rate with that process, that also gives me confidence as to your rehabilitation.  Had that Magistrates' Court not intervened I would have probably given you a sentence of around about that 158 days with a community corrections order to follow in any event.  It seems here that to do so would be somewhat gratuitous. 

14Your personal circumstances are that you have reached the age of 21 with no prior convictions.  There were references tendered on your behalf.  You are doing very well it would seem with an organisation known as Headspace and in fact they have now put the appointments further apart because they believe you are doing well. 

15There is also a letter which outlines your background.  Again, in a situation like this I do not think I have to go into great detail.  You were adopted when you were very young.  You obviously were good at sport and reasonably good at school.  You went to Mackillop College and obviously were a worthwhile student.  You went to Thailand with the Rotary Club.  After a period of time after leaving school you went to Geelong, and attended Deakin University before transferring to La Trobe University in Bendigo. 

16It would seem that you then decided to take a gap year.  It was during that gap year or perhaps even before, I do not know, that the real problems started to arise in your personal life and the drug use came about. 

17It seems that subsequent at least to the prison sentence and I would not want to be a situation of having to send you back to prison after you have already done such a period of time in prison, you have been able to look after yourself.  You are living at home with your parents, your father and mother both have very responsible positions.  Your brother is living there as well with a small child and you effectively tend to home duties and rehabilitate yourself through the community corrections order. 

18Insofar as that rehabilitation is concerned, with what is in place at the Magistrates' Court I am confident that it can be achieved and if it is achieved the risk of you reoffending, bearing in mind you have no prior convictions, should be relatively low. 

19On the other hand, matters such as general and specific deterrence have to play part, denunciation and appropriate punishment. 

20In all the circumstances of this matter and taking into account the maximum penalties and the fact that the firearm offence is very much at the lower end, you are sentenced to be imprisoned for a period of 67 days.  I direct that 67 days be reckoned as having been served under that sentence and you are therefore free to leave. 

21Insofar as the matters concerned pursuant to s.6AAA it is difficult in circumstances such as this because it is a settled indictment but had you fought this out and been convicted by a jury of robbery in these circumstances I would have sentenced you to be imprisoned for a period of six months and I would have had that be followed by a community corrections order, very much of the same nature that the magistrate has imposed some month or so ago. 

22COUNSEL:  Your Honour pleases.

23HIS HONOUR:  That is probably not a valid 6AAA declaration but it is what I would have done.

24MR HAMMILL:  Indeed.  We'd formally, like with yesterday with Mr Warby, our position on the disposal orders is somewhat in flux at the moment so ‑ ‑ ‑

25HIS HONOUR:  We would not know.  It seems to me that - I will just mentally at least take a note that there is no problems with disposal orders.

26MR PEARSON:  No, Your Honour.  Look, the only - and this was raised with my learned friend's instructor this morning, apparently a laptop computer, the name of which was a MacBook, was taken and she wants that back if that's possible.  It's got nothing to do with this case.  And apparently there was a mobile phone, there was I think two or three mobile phones taken.  One of them was in a box and had not been used and she wants that back if possible.  But I'll raise that with my learned friend and the instructor, everything else can ‑ ‑ ‑

27HIS HONOUR:  Well see, it is a bit difficult for me sitting here because I do not know what the Crown might need in trials and things like that.

28MR PEARSON:  Yes.

29MR HAMMILL:  Yes, no ‑ ‑ ‑

30MR PEARSON:  Well we'll resolve that between ourselves.

31HIS HONOUR:  We will let it ride.  Look, if it cannot be resolved ‑ ‑ ‑

32MR PEARSON:  Your Honour can make ‑ ‑ ‑

33HIS HONOUR:  ‑ ‑ ‑ it is a matter that can be done virtually in chambers. 

34MR PEARSON:  Yes.

35MR HAMMILL:  Yes, Your Honour.

36HIS HONOUR:  We do not have to reconvene everybody.  You can just make the Crown aware of what she does want back.  Once this entire trial is concluded ‑ ‑ ‑

37MR PEARSON:  Yes.

38HIS HONOUR:  ‑ ‑ ‑ whether there is going to be another accused, I do not know, after reading that.  It may all start again.

39MR PEARSON:  But we'll sort that out amongst ourselves, Your Honour.

40HIS HONOUR:  Yes, if it cannot be, I am happy to just virtually do it in chambers but I am sure you gentlemen would be able to work that out easy.

41MR PEARSON:  Yes.

42MR HAMMILL:  Thank you, Your Honour.

43MR PEARSON:  Your Honour please.

44HIS HONOUR:  But I do understand the Crown position.  They do not want to be giving things away or disposing of them until ‑ ‑ ‑

45MR HAMMILL:  No.

46MR PEARSON:  Until ‑ ‑ ‑

47HIS HONOUR:  ‑ ‑ ‑ the whole matter is disposed of.

48MR PEARSON:  ‑ ‑ ‑ litigation's complete.  Yes, Your Honour.

49HIS HONOUR:  Yes.

50MR PEARSON:  Indeed.  Thank you, sir.

51HIS HONOUR:  All right.  Yes, thanks for that, thanks, Mr Pearson.  Yes, you can leave the dock now, thanks.  All right. 

52MR HAMMILL:  We might need just a little while before we start ‑ ‑ ‑

53HIS HONOUR:  No, I assumed would.  We have not got a video link anyway for the moment, five minutes.

54MR HAMMILL:  Is he here?

55UNIDENTIFIED SPEAKER:  No.  (Indistinct words) at 11.30.

56MR HAMMILL:  He's - of course, yes.

57HIS HONOUR:  Yes.  Yes, she is right to leave the dock. 

58UNIDENTIFIED SPEAKER:  We're just unlocking the door, Your Honour.  (Indistinct words).

59HIS HONOUR:  Well make that 68 days and I will ‑ ‑ ‑

60(At this stage the court proceeded with another matter.)

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