Director of Public Prosecutions v McCarthy

[2019] VCC 218

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02040

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOEL LUKE McCARTHY

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February 2019
DATE OF SENTENCE:	27 February 2019
CASE MAY BE CITED AS:	DPP v McCarthy
MEDIUM NEUTRAL CITATION:	[2019] VCC 218

REASONS FOR SENTENCE
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Subject:              CRIMINAL LAW - SENTENCING

Catchwords:      Arson, attempted burglary, burglary and theft – plea of guilty – youthful offender – combination sentence imposed

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Lenthall	John Cain Solicitor for the Office of Public Prosecution
For the Accused	Mr J. Van Arkadie	Victoria Legal Aid

HER HONOUR: 

1Joel Luke McCarthy, you have pleaded guilty in respect to five charges in the indictment and they are:  one charge of arson; two charges of theft; one charge of burglary; and one charge of attempted burglary.

2The charges are serious and that is evidenced by the maximum penalty prescribed by law and they are as follows:

·Theft – 10 years’ imprisonment;

·Burglary – 10 years’ imprisonment;

·Attempted burglary – 5 years’ imprisonment; and

·Arson – 15 years’ imprisonment.

3In addition, you admitted your prior criminal history.  There are two court appearances. On 3 June 2016 at Dandenong Magistrates' Court, without conviction, you were placed on a community correction order for one year with supervision and treatment and assessment for drug abuse and dependency, as well as mental health assessment and offending behaviour management programs, for offences involving trafficking, possession of methamphetamine, negligently deal with proceeds of crime, fail to appear on bail and possess prohibited weapon without approval. 

4On 20 October 2017, you were dealt with in respect to contravention of that order.  The contravention was found proven but no further action was taken.  In addition, you were convicted of multiple charges of theft of motor vehicle, possess methyl amphetamine, handle stolen goods, state false name and address when requested, unlicensed driving, fail to answer bail and theft.  With conviction, you were fined an aggregate fine of $2,000 and your licence was cancelled and you were disqualified from holding a licence for one month. 

5There has been a subsequent court appearance. On 20 August 2018, at Dandenong Magistrates' Court you were convicted and sentenced and ordered to serve an aggregate sentence of 180 days imprisonment and that related to a consolidation of charges that included theft of a motor vehicle, and that occurred on 27 December 2018, handle stolen goods, registration plates and fail to stop when requested by police, theft of a ladder.  Those charges relate to 28 December 2018.  Drive whilst disqualified, fail to stop on police request, exceed the speed limit, fail to stop at a red light, that relates to events on 2 January 2018.  Theft of number plates, theft from motor vehicles, obtain property by deception and the dates of those offences are between 18 and 19 January 2018.  Handle stolen goods, deal property reasonably suspected of being stolen, possess methyl amphetamine, obtain financial advantage by deception and unlawful assaults.  Those events relate to 24 January 2018.  And the latter charges of unlawful assaults relate to assaults against the occupiers of 83 Cheviot Drive, whose home was the subject of the burglary charge, namely Charge 2 on the current indictment. 

6In addition, any licences that you hold were cancelled and a 12 month disqualification period was imposed, effective from 20 August 2018. 

7A period of 180 days pre-sentence detention was declared. 

8In formulating the appropriate sentence for this indictment, I have had regard to the sentence that was imposed on 20 August 2018 and the applicability of the principles of totality. 

9I will turn now briefly to the circumstances of your offending.

10I have had full regard to the prosecution opening that was read at the plea hearing and is marked Exhibit 1.  You were aged 23 at the time of offending and you are now 24. 

11On Wednesday 24 January 2018 at approximately 8 pm you drove a Subaru XV station wagon to a house at 83 Cheviot Drive, Berwick.  The Subaru had been stolen sometime earlier from a residential address in Pakenham.  You knew the vehicle to be stolen when you were driving it and that forms the basis of Charge 1, theft of a motor vehicle.

12A female associate, Phoebe Fuller was present with you.  When you arrived at the premises you entered the property whilst Ms Fuller stayed in the Subaru.  The residence was in the process of being renovated and you took a number of power tools from inside the premises and that is Charge 2, burglary.

13The owners of the property arrived home just as you were loading the tools into the Subaru and a confrontation took place, that is the subject of the assault charges that have been dealt with at the Dandenong Magistrates' Court on 20 August 2018.

14During this incident the owners took photographs of both you and Ms Fuller and they were later provided to police.  Following the confrontation you fled the scene, leaving the Subaru and the tools in the driveway. 

15Police attended and arranged for the Subaru to be towed to the Berwick Towing Depot ("the depot"). 

16On the following day, at about 6.45 am, you attended the depot and unsuccessfully attempted by force, to enter the premises by jemmying open a rear door with a crowbar.  Your intention was to damage the Subaru by burning it.  An alarm was activated during your attempt, following which a staff member attended and you left the depot.  You left behind a jemmy bar, bolt cutters, a petrol jerrycan and black glove.  Your DNA was later found on the glove and that constitutes the facts of Charge 3, attempted burglary. 

17On Friday 26 January 2018, at about 5.30 am, you and a number of unknown offenders drove back to the depot.  You drove a Toyota HiLux utility in convoy with unknown offenders who drove separate vehicles.  One of those vehicles, a Mitsubishi Pajero had been stolen on the previous evening and the Toyota HiLux had also been stolen from a commercial property in Clyde North.  You knew the vehicle to be stolen when you were driving it and that constitutes the basis of Charge 4, theft of motor vehicle.

18The plan was to set fire to the Subaru EV inside the depot.  You agreed to assist the co-offenders in driving them away from the scene.  You waited inside the Toyota HiLux while the co-offenders drove the Mitsubishi Pajero into the roller door of the depot, forcing it open.  Two unknown co-offenders then entered the depot through the open roller door, they located the Subaru EV and set it alight using an accelerant.  The co-offenders immediately fled the scene and got into your vehicle, following which you drove them away. 

19The Subaru was engulfed in flames and the fire spread to various parts of the depot and included eight other vehicles.  A forklift belonging to the business was destroyed.  Various items inside the depot office including computers, furniture, tools and other equipment was damaged by smoke.  The CCTV system was destroyed as well and the roller door was damaged.  Those facts constitute the basis of Charge 5, the arson charge.

20The fire was ultimately extinguished by emergency services.  The business owner estimates that $700,000 is the total value of the damage caused.  The Crown prosecutor confirmed that the insurer has confirmed that $335,967.42 was the cost of the damage to the premises, together with a period of loss of rent from 26 January to 15 November 2018. 

21You were arrested 12 days later and located with the stolen Toyota HiLux, which you had spray painted black. 

22The other co-offenders have not yet been identified and they remain at large. 

23An interview was conducted during which you made a partial no comment interview.  You made no admissions concerning the offending.  You denied knowing anything about the offences committed at the Berwick Towing Depot on 25 and 26 January 2018. 

24You were then remanded in custody. 

25You entered a plea of guilty on the morning of the contest committal mention, prior to any witnesses being called and the matter then proceeded by way of straight hand-up brief. 

26No victim impact statement has been provided.  Given the nature of the damage caused by the fire at the depot, the owner of the business who rents the premises would have suffered severely as a result of both the financial impact and also the inconvenience as a consequence of these events disrupting his business.  The owner has estimated his out of pocket expenses in relation to the damaged contents at approximately $40,000.  Following the fire, the business owner was unable to use the depot for some time, being declined insurance. 

27Your offending, Mr McCarthy, is very serious and does call for denunciation.  Through your actions you severely inconvenienced the owners of the Subaru XV and the Toyota HiLux, the subject of Charges 1 and 4.  In addition, you invaded the privacy of the property in Berwick in order to steal the tools and you caused the damage that I have described, at the Berwick Towing Depot.  Your actions must be condemned. 

28Mr Van Arkadie on your behalf, acknowledged the seriousness of the offending and accepted that deterrence, denunciation and just punishment are important sentencing considerations. 

29He provided the context to your offending.  You had a raging drug addiction and had been using methamphetamines heavily. 

30Your personal circumstances and background history provides some explanation and context to your drug addiction. 

31You were raised by a single mother who tragically died as a consequence of a transport accident when you were aged only eight, in February 2003.  Your mother cared for both you and your older half-sister, Your biological father left the family home because of allegations involving your half-sister.

32Following your mother's death, your maternal grandparents, Helen and Kevin have cared for you and they did their best to fill the void that had been left by your mother's death. 

33Both your grandmother and your sister were present during the plea hearing.  They provide you with strong community support and have expressed their willingness to continue to support you.  Your grandparents are prepared for you to return to live with them at their home, following your release.

34It is said that you were very stoic about your traumatic childhood and growing up, you did not require any psychological assistance.  You completed Year 11 and did well at school.  You initially worked as a concreter and then worked for a time at the company known as Multiform, until that company ceased its operations because of the closure of the automotive industry in Victoria.  You attempted a pre-apprenticeship plumbing course and then returned to concreting.  You have a long history of drug use commencing at age 13, using
cannabis-L and moving on to methamphetamine by age 14.  By age 18, your addiction to methamphetamines was problematic.

35Your personal use escalated following receipt of a payout from the Transport Accident Commission, relating to compensation for your mother's death.  A considerable portion of that money was spent on drugs. 

36You now acknowledge that your use of drugs is clearly linked to your offending.  In the past, you have never had any intensive drug treatment or detoxification. 

37Whilst on remand, you have now effectively detoxed as evidenced by the negative drug screen provided and you have also undertaken some treatment.  You have completed the healthy lifestyle plan program on 30 November 2018 and the substance use program in November 2018.

38You regularly attended AA meetings from March 2018 whilst you were at Fulham Prison and you have been transferred to Port Philip Prison because of an incident that has occurred, that is subject to a different charge yet to be heard. 

39I have had regard to the matters put in mitigation on your behalf by Mr Van Arkadie.  Your plea has utilitarian value.  You pleaded guilty at the earliest reasonable opportunity and the matter proceeded by way of straight hand-up brief.  The State therefore, has been spared the expense and inconvenience of a trial and the plea I accept is evidence of some remorse on your behalf.  Further you have facilitated the course of justice and your sentence will be discounted accordingly.

40I accept that you have expressed appropriate remorse to family members.  You are a relatively youthful man and I have had regard to the principles concerning the sentencing of youthful offenders established by the

[1] [1998] 4 VR [235] – [241]

[2] (2011) 35 VR 43

R v Mills[1] and re-examined in the R v Azzopardi[2].  It is acknowledged that in cases of serious offenders, those principles may assume less weight. 

41I am satisfied that the circumstances of this offending is such that, your behaviour is indicative of immaturity on your behalf, lack of insight, judgement and self-control in the context of a heavy drug addiction.  In custody, you have developed some insight into your offending behaviour and importantly, you now express the desire to want to lead a more law-abiding life.

42You have been in continuous custody since 7 February 2018 and have shown that you can be productive and address your underlying offending behaviours.  You have completed a lot of modules and attended many sessions in relation to your drug use.  It is your first time in custody.  You now have more positive life goals and you are willing to live at your grandparent's place. You have expressed a willingness to participate in a Community Correction Order aimed at addressing your offending behaviours.

43Mr Van Arkadie sought a disposition that would involve a combination of a gaol term and a Community Correction Order, that is fashioned in a way to address your particular needs, including assessment and treatment for drug use.

44Ms Lenthall, on behalf of the prosecution, confirmed that such a disposition would be open to the court.  She drew the court's attention to the fact that for an arson charge, the duration of a gaol term combined with a community correction order is not limited to one year[3].  She confirmed that this was serious offending over a relatively discreet period of time.  She highlighted the brazen nature of the burglary on the residential property, during day time, when there was a risk of high detection, which ultimately eventuated. 

[3] See s44(1) and s44(1A) of the Sentencing Act 1991 Victoria

45The offending relating to the arson was in company, was carefully planned and executed.  By setting fire to the Subaru vehicle, numerous other vehicles and property was then placed at risk.  In addition, the people who attended to extinguish the fire were also placed at risk and there has been significant financial implications for the business owner, who has been occasioned substantial loss.  Nonetheless she acknowledged the matters that were put on your behalf by Mr Van Arkadie and in particular, the fact that you are still relatively youthful and you are a person who does have good prospects for rehabilitation.

46Overall, I have assessed your prospects for rehabilitation as being reasonable, particularly having regard to your conduct since you have been in gaol, in terms of taking positive steps to address your underlying offending behaviour, which in this instance is inextricably linked to your heavy addiction to methyl amphetamines.  In sentencing you, I must impose a sentence that is just and appropriate in all the circumstances and general and specific deterrence, denunciation and community protection are significant features of this sentence.

47In formulating the appropriate sentence, I have been guided by the guideline judgement known as Boulton[4], where it is said in appropriate cases, a Community Correction Order can provide a flexible sentencing option enabling punitive and rehabilitative purposes to be served simultaneously.  I have sought to fashion a Community Correction Order that will address your particular circumstances of offending, your personal circumstances and the cause of your offending, such that it will minimise your risk of re-offending by promoting your rehabilitation whilst being in the community.

[4]Boulton , 311[2]

48It has been said, notwithstanding that serious offences have been committed, that nonetheless a Community Correction Order can be open even in cases of very serious offending[5].  You have been assessed as being suitable for such an order and ultimately, I have come to the conclusion that a combination sentence in the manner proposed by your counsel is appropriate.  I consider all relevant objectives of sentencing can be met by such an order.  I will now make the formal orders.  Could you please stand?

[5] Williams v The Queen [2018] VSCA 171 [47]

49In relation to Charge 1, theft; Charge 2, burglary; Charge 3, attempted burglary; Charge 4, theft; Charge 5, arson you will be convicted and sentenced to time served, which is 205 days to be followed by a Community Correction Order of three years duration, with special conditions in addition to the mandatory conditions that are proscribed by law.

50The special conditions are 250 hours unpaid community work, supervision and treatment for drug addiction including testing, and also programs to reduce reoffending.  I will make the formal order that all hours of treatment, rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

51In addition, any licence that you hold will be cancelled and you will be disqualified from holding a licence for a period of 12 months, effective from today's date and that relates to Charge 1 and Charge 4 on the indictment. 

52I make the following declaration pursuant to S.6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have imposed a term of imprisonment of five years, to serve three years.

53I make the declaration of pre-sentence detention as follows.  I declare that you have spent 205 days in custody and direct that that be entered into the record of the court.

54I am just checking to see - there are no other ancillary orders, is there?

55MS LENTHALL:  No, Your Honour.

56HER HONOUR:  No.  All right.  The only question in my mind is, Mr McCarthy, he has been charged in relation to the matter at the gaol.  Is that a summons?

57MR VAN ARKADIE:  It is a summons matter.  Yes, Your Honour.

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