Director of Public Prosecutions v McCarthy

[2023] VCC 171

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR 21-00740

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALYCIA MCCARTHY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	14 February 2023
DATE OF SENTENCE:	14 February 2023
CASE MAY BE CITED AS:	DPP v McCARTHY
MEDIUM NEUTRAL CITATION:	[2023] VCC 171

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr T. Fitzpatrick	LACW

HIS HONOUR:

1Alycia Jane McCarthy, you have pleaded guilty to one charge of theft of a motor vehicle, you can sit down and one charge of theft by deception.  Those crimes carry maximum penalties of 10 years and 10 years.  Firstly, in regard to the theft of a motor vehicle, you are suspended.  Any licence to hold a - any licence to drive a motor vehicle is hereby suspended for 24 hours.

2The situation is that you are now 32 years of age.  You have pleaded guilty to a settled indictment and I regard that as early.  I accept there is an element of remorse involved in all this.  I understand the milieu in which all this took place.  I am sure that your plea of guilty is of real value to the Crown.  You must get the credit for that.  Obviously the utilitarian benefit of that plea of guilty in these times of Worboyes, that has to be an observable discount.

3You do have significant prior convictions, but looking - they seem to have only commenced in 2018, when you were in your mid to late twenties, which is – gives me some comfort that you may be able to turn your life around.  Insofar as the timing of all of this is concerned, there has now been a delay in excess of over two years, which I also take into account.  My understanding is, you have also, for unrelated matters, served a period of six months in the twixt time, which I can regard as Renzella time and for these matters standing alone, you have served a period of 64 days imprisonment.

4I will describe the offending very briefly.  There has to be, I suppose, regard to the application of general and specific deterrence in the normal course of events.  Denunciation and punishment.  I think all those matters can be adequately covered by a simple time served.

5A summary of the offending is that, a Mrs Farmer, who was essentially homeless and living out of the car, had that car stolen in the middle of the night by persons unknown.  In any event, you were seen driving that vehicle a matter of hours later and I am sentencing you on the basis that you knew that that vehicle was stolen and that you subsequently, having driven the vehicle whilst knowing it was stolen, used the credit card which had also been taken from Ms Farmer, to purchase a bottle of lemonade, or something, from a Coles Express in Traralgon.  All this occurred back in March of 2020.  That is a very simple description of what took place.  I do not think I need to go into any more detail.  As indicated, I am well aware of the milieu in which all this occurred.  I take all those matters into account.  There is no victim impact statement and I am told by the Crown that the complainant is relieved that the matter is over and indeed, has been reluctant to give evidence.

6I then looked to matters personal to you.  Your counsel has provided very helpful and very succinct submissions and I think in these circumstances, I will simply say that, as I said, you are 32.  You have priors.  I think they have all occurred over the last four or five years.  You have been – I will perhaps summarise very briefly from the report of Ms Carla Lechner, which was – I marked as Exhibit 2, if I have not already, which is tendered on your behalf.

7Essentially you have had a sad history.  You have a couple of children.  Been backwards and forwards all over the place, homeless and the like, but in any event, Ms Lechner said you were a person with a prior history of offending that all occurred, at that time, in the previous two years, that you had a stimulant use disorder, that you had a post-traumatic stress disorder, major depressive disorder.  She said:

'In addition, it is my view that she also fulfils the criteria of a diagnosis of borderline personality disorder, with marked fear of being alone, affected instability and engaging in repetitive self-defeating behaviours, involvement – '

8She said you had involvement in a long-term abusive intimate relationship and that that as well had eroded your:

'Already fragile self-esteem and increased her sense of isolation.'

9Drug use has come about because of all that and you clearly have parlous mental health and all sorts of difficulties.  I do not think I need to go through the family background of all this.  I have read the letter from the Law and Advocacy Centre for Women and it is clear to me that, over the last couple of years, you have been doing your best to get your life back on track.  I do not see any reason why this court should do anything to hinder that.  The prospects of your rehabilitation are up to you.  The risk of you reoffending if you do not – if you are unable to get these matters in place, such as work and everything else, may be regarded as at least moderate, but I am very hopeful that, despite having fallen out with your mother and the Maffra area, that you can get some sort of stability and back into your life, if you have ever had any.

10Accordingly, in those circumstances, I sentence you to be imprisoned for an aggregate period of 64 days and that the 64 days be reckoned as having been served under that sentence. Pursuant to s6AAA of the Sentencing Act, I say that but for your plea of guilty, you would be sentenced to be imprisoned for 100 days.  As I have said, licence suspended for one day.

11MR MOORE:  Excuse us for a minute, Your Honour.

12HIS HONOUR:  Yes.

13MR MOORE:  Your Honour, just dealing with this forfeiture and/or disposal order sought by the Crown, I formally make the application, but because the informant is on leave, we really need ‑ ‑ ‑

14HIS HONOUR:  Oh, look, I'm happy to do that in chambers.  As long as before I make any orders, agreement with the defence has been made.

15MR MOORE:  Yes, that's right.

16HIS HONOUR:  And that can just be done with a simple phone call to my associate and I'll make those orders in chambers and ‑ ‑ ‑

17MR MOORE:  Yes Your Honour.  Well, perhaps I'll just foreshadow that, at this stage.

18HIS HONOUR:  Well, regard the application as on – applications as on foot ‑ ‑ ‑

19MR MOORE:  Yes.

20HIS HONOUR:  ‑ ‑ ‑ and we'll go from there.

21MR MOORE:  Thank you, Your Honour.  It's likely to only be a few itinerant items, I would think.

22HIS HONOUR:  Oh, I suspect it's going to be more to do with what was found at the scene.

23MR MOORE:  Yes, Your Honour.

24HIS HONOUR:  The non-co-accused's phone, for example.

25MR MOORE:  Yes, all that stuff.

26HIS HONOUR:  Various other items, yes.  All right, thanks for that, gents.

27MR FITZPATRICK:  Thank you, Your Honour.

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