Director of Public Prosecutions v McCartan

[2016] VCC 1386

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00956

DIRECTOR OF PUBLIC PROSECUTIONS

v

CRAIG MCCARTAN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 September 2016
CASE MAY BE CITED AS:	DPP v McCartan
MEDIUM NEUTRAL CITATION:	[2016] VCC 1386

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	Ms A. Bhai
For the Accused	Mr N. Tehan

HIS HONOUR:

1Craig McCartan, you have pleaded guilty to one charge of causing injury recklessly and one charge of false imprisonment.  Those crimes carry maximum penalties of ten years and five years respectively.  You are now 31 years of age.  You pleaded guilty at the earliest reasonable opportunity and have expressed, within your capacities, appropriate remorse.  You must also get the utilitarian benefit of that plea of guilty.

2Upon you being arrested for this matter you have remained in custody and have now served a period of 218 days.  You have a - if it can be called that I suppose - a criminal history which I will refer to in a moment.  A summary of the offending was - and I will do this in brief and direct that the Crown opening remain on the court file, as well as the tendered medical reports, because I will not be referring to those in detail.

3On 11 February 2016 your mother was asleep in the front bed of your Newport home.  You got home about 4.30 am in the morning and were clearly unwell.  You told your mother to go and clean up a room which she said she would do it later and you told her, "No, no, do it now."  She went to clean it up and you effectively assaulted her.

4You kept telling her to go faster and you pushed her against a wall which she said hurt her quite a bit.  You picked up a wooden rod from the floor and began hitting the bedroom door.  She told you that she wanted a drink and you told her she could go to the bathroom to get that.  She went to the bathroom and you followed.

5While she was drinking from a tap at the sink you turned on the taps and told her to get in the bath.  She did.  She was fully clothed.  The taps were on and water began to overflow and she was effectively kept there for an extended period of time.  She was told to put her head under the water and that happened on more than one occasion.

6She sat in the bath for about five minutes while you remained in the bathroom.  You were throwing toiletries from the shelf onto the floor.  She was in the bath I am told for about 30 minutes and she told you that you had to turn the taps off because it was flooding the house.  You went away and came back with a mop, a bucket, a wooden step ladder and a draw and you put those on her to try and keep her, as I understand it, in the bath and made it virtually impossible for her to get out.

7She sat in there for about 30 minutes with those items on her.  After she had been in there for about an hour, as I have said, you helped her out and told her to have a shower.  After getting showering and changing she went into the kitchen and had breakfast.  You were apparently rambling about things that had happened in the past when you were six years old.

8In any event, the matter was reported and you were arrested.  You were clearly very unwell at the time and I might say that the situation of you pleading to this rather than conducting a trial and relying on mental impairment is a very sensible one to be undertaken by your legal representatives.

9I have effectively been dealing with you now for over a decade.  In February of 2005 you were placed on a non-custodial supervision order by myself in relation to offending and that non-custodial supervision order is still in effect.  I have noted through the materials that are before me that that appears to have been turned into a custodial supervision order at some stage, but I must confess I have no recollection of that occurring.  In any event, you have been and remain under the care of Forensicare.

10Tendered on your behalf is a report from Dr Sullivan, who is of course well known to me, and also I was able to provide the annual update from Thomas Embling as to your condition from psychiatrist, Dr Chevey.  I take all the matters in those reports into account.

11Clearly in so far as this offending is concerned your moral culpability is reduced dramatically and general and specific deterrence in the normal course of events would be applicable, but with you they must be very significantly reduced.  In so far as taking medication is concerned you must be aware that if you do not take your medication you will become unwell and ultimately the authorities will apply to me to have your custodial supervision order revoked.

12That will be a sad day indeed and I understand that you are well at the moment because you are medicated, but I make it clear to you that once a custodial supervision order is in place they are a very difficult thing to get rid of.  In any event, I take all of those matters into account.  The prospects of your rehabilitation and the risk of you re-offending are very much up to you and the mental health authorities.

13I have read the victim impact statement from your mother which basically points out what had occurred and she has done so without animosity and shows the obvious care for you that she has.  The circumstances of your background I do not think need to be gone into.  What is of real concern at the present time is what would happen if I sentence you to be imprisoned and released today.

14You do have strong family support from your stepbrother and his family is here today and has visited you regularly in custody.  You are able to go and live with him in the immediate period of time. Forensicare, as I understand it, have made an appointment to see you on Monday of next week and they will then determine what takes place from there.

15In so far as their actions are concerned, unless they make an application for the revocation of the order it has virtually nothing to do with me.  My main concern was that you not be simply released into the never never, but the more recent submissions from your counsel which were sent last night indicate that that is all under control and I can feel sure that you are going to a safe environment, and certainly at the moment understand the need to continue your medication.

16I will direct that those medical reports and the submissions of counsel remain on the file so that in future, and there will be, the non-custodial supervision order will have to come back before the court at some point - those documents will still be available to anybody with a general genuine interest.

17The circumstances of the offending are such that I think a sentence of imprisonment despite your mental difficulties is warranted.  You have done 218 days and accordingly I sentence you to be imprisoned for a period of 218 days.  I direct that 218 days be reckoned as having been served under this sentence which entitles you to immediate release, but for practical reasons that will need to be done from downstairs.

18I understand your brother is present in court to be able to take you home from there.  In so far as s.6AAA is concerned this is one of those circumstances where it is absolutely meaningless.  Had you run this matter in front of a jury I dare say you would have been acquitted due to mental impairment.  But for the record I will say that but for your plea of guilty I would have sentence you to be imprisoned for a period of 12 months.

19We have got the non-custodial 464?

20MS BHAI:  Yes, Your Honour.

21HIS HONOUR:  He agrees to that?

22MR TEHAN:  Not opposed, Your Honour.

23HIS HONOUR:  Where is the police station going to be?

24MR TEHAN:  Tarneit, Your Honour.

25MS BHAI:  Actually I might just check.  I am not sure with a custodial.

26MR TEHAN:  Tarneit, Your Honour.

27HIS HONOUR:  Tarneit?

28MR TEHAN:  Yes.  I think it is called Wyndham.

29HIS HONOUR:  Wyndham Vale or something, is it?  I do not know.  The non-custodial one should have all the police stations on the back.

30MS BHAI:  Your Honour, I am sorry, a non-custodial one has not been provided to my instructor so I am not in a position to provide that to Your Honour.

31HIS HONOUR:  I have got to sign it now.

32MS BHAI:  Maybe I could email it to your associate.

33HIS HONOUR:  I suppose I can make the order and authenticate it later.  You okay with that, Mr Tehan?

34MR TEHAN:  Yes, sir.

35HIS HONOUR:  Please explain it to him.  I will make that order now so when I receive I will sign it and it will be dated today.

36MS BHAI:  I apologise for that, Your Honour.

37HIS HONOUR:  Then a copy can be sent to counsel and it can be sent to you.  What I have done is that I am going to make an order that you provide a saliva sample for DNA.  It is simple.  There are no needles or anything like that.  So you have got to provide it.  You have got to go to a police station to do it and Mr Tehan will explain to you how to do that.

38It is probably not a bad idea, once the order is received, to do it as soon as possible and just get it out of the way.  It is a simple process.  There is no dramas.  I do not know what the local police station will be, but we will work that out from here.

39MR TEHAN:  It is Wyndham North, Your Honour.

40HIS HONOUR:  Wyndham North?

41MR TEHAN:  Yes, 24 hours.

42HIS HONOUR:  Yes.  Nothing else I need to do?

43MS BHAI:  No, Your Honour.

44HIS HONOUR:  Thank you.

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