Director of Public Prosecutions v McClay
[2019] VCC 755
•8 May 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL JURISDICTIONCR-18-02548
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRADLEY McCLAY |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 2 May 2019 |
| DATE OF SENTENCE: | 8 May 2019 |
| CASE MAY BE CITED AS: | DPP v McClay |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 755 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Burglary – theft – theft of firearm – contravene conduct conditions of bail
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:44 days' imprisonment (time served) and 24-month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. O'Doherty | Office of Public Prosecutions |
| For the Accused | Ms E. Millar | Victoria Legal Aid |
HIS HONOUR:
1Bradley McClay, you have pleaded guilty to one charge of burglary, one charge of theft, one charge of theft of a firearm, and one transferred summary charge of contravene certain conduct conditions of bail.
- Each of burglary and theft carries a maximum penalty of 10 years' imprisonment.
- Theft of a firearm carries a maximum penalty of 15 years' imprisonment.
- Contravene certain conduct conditions of bail carries a maximum penalty of 3 months' imprisonment or 30 penalty units.
2You were born on 17 September 1990 and are now 28 years old. You were aged 27 at the time of the offending in August and September last year.
3You do have a criminal record of some offending, to which I will refer shortly.
4By way of background, at the time of the offending you were single, unemployed and residing with your then ex-partner at premises in Boundary Road, Kerang.
5The victim in this matter, Iris Ruth Angel, is the owner of premises in Peerman Road, Kerang. Ms Angel lived at these premises until 2014, when she moved to Ballarat. Since 2014 Ms Angel has returned to the Peerman Road premises multiple times a year to visit friends, stay in the house and maintain the property. In a shed at the rear of the property she left three registered firearms in a firearms safe, a large chest and multiple electric and manual tools. She attended at Peerman Road on 27 August 2018 and noticed that the mentioned items had been stolen.
6The circumstances of the offending are as follows.
7Between 10 August 2018 and 26 August 2018 you attended the vacant property at Peerman Road. You gained access to the rear shed, which was located near the house. This conduct represents Charge 1 of burglary.
8Inside the shed was a firearms safe containing a 12-gauge shotgun, a .22 calibre rifle, and an air rifle. Also in the shed was a box containing various tools. You dragged the firearm safe and the toolbox to the front of the property. Once the two boxes were dragged away from the house, you phoned a friend, Matthew Hempenstall, to see if he was available to assist you. You departed the property, picked up Mr Hempenstall, drove back to the property and put the firearms safe and toolbox into the car with his assistance.
9You then drove to the house of another friend, Michael Hall. You both attempted to grind the hinges off the safe. At this time, a Mr Benjamin McCallum arrived at the house. You and Mr Hall took the gun safe out to a creek to finish the process of grinding the hinges off the safe, and Mr McCallum went home. At the creek the safe was opened and three firearms were found inside. Once the guns were removed from the safe, the safe was dumped by throwing it off the bridge and into the creek. This conduct represents Charge 2, theft (being the toolbox and the safe) and Charge 3, theft of firearm.
10You admitted to initially being excited to find the guns and took them back to Mr Hall's house. You and Mr Hall arrived at his house, and sometime later Mr McCallum returned to the house. Mr McCallum recalled that you said that the safe contained a custom “shotty”, a 22 and an air rifle, and you wanted to shoot the guns. Later, you became anxious and concerned about the guns. Mr McCallum said he would get rid of the guns, wrapped them up and then took them to another friend's house.
11On 3 September 2018 you were charged and bailed in relation to an unrelated matter. You were bailed to the Kerang court on 13 September 2018. The conditions of bail were:
· to reside at a nominated address in Kerang,
· not to contact any witnesses for the prosecution, and
· to remain and be at the nominated address in Kerang between the hours of 9 pm and 7 am.
12In fact, whilst on bail you stayed at premises in Bendigo for three or four days and contacted your ex-partner, which was in breach of the bail conditions. This conduct relates to the notice of related summary offence, contravene certain conduct conditions of bail. I do note that your relationship with your ex-partner, now current partner, has been on and off for a period of five years.
13You were arrested on the current matters on Thursday 13 September 2018, and were taken to the Kerang police station and interviewed. You made full admissions to the burglary, the theft of the firearms and the tools. You also assisted the police investigation by providing the location of the stolen tools, which were then recovered by police. However you did not know the whereabouts of the stolen firearms, and police attempts to locate them have been unsuccessful.
14In relation to the burglary and theft you said, “I was under the influence of stuff – drugs, meth, amphetamines to be specific.”
15You admitted that you were not registered to possess, carry, or use a firearm.
16You were aware of the bail conditions that had been imposed on you on 3 September 2018. When asked about how long you were residing at the Bendigo address, you said, 'Three to four days. I tried to get into drug and alcohol rehab.'
17Immediately following your arrest and interview you were remanded, and served 44 days in custody before obtaining bail. I note that in that period you were moved through four separate remand centres and spent two weeks in police cell custody.
18A victim impact statement from Ms Angel was tendered on the plea. It is clear that Ms Angel has suffered significant anxiety, distress and loss of trust, and specifically refers to the stolen guns. However, I accept that the overwhelming cause of Ms Angel's worries concerns the house having been ransacked and many valuable and sentimental items stolen. These are not crimes that you are responsible for. Nonetheless, the theft of the guns was a matter of grave concern for her.
19I now turn to your personal circumstances.
20As I noted earlier, you are now 28 years old and at the time of the offending you were aged 27.
21Again as I noted earlier, you do have a criminal record, which commenced with an appearance at the Bendigo Magistrates' Court in September 2012 when, at the age of 22 and for the offence of using a service to transmit indecent material to someone under the age of 16, you were put on what is, in effect, a good behaviour bond for 12 months, without conviction.
22On 12 June 2018 you were convicted and fined at the Swan Hill Magistrates' Court for several dishonesty, weapons, and driving offences.
23Some three weeks later, on 3 July 2018, the Deniliquin Local Court records you having been convicted on breaking and entering and theft offences. You have yet to be sentenced in this matter.
24The conviction and fine imposed on 12 June 2018 did not deter you from committing the current matter the following August.
25I note that subsequent to the current offending, you were convicted in March this year for various offences including theft, unlawful entry, possession of a prohibited weapon, road traffic breaches and contravention of bail. You were convicted and sentenced to comply with a community correction order for a period of 12 months, with conditions including that you perform 120 hours' unpaid community service. These subsequent convictions are not relevant as prior offending, but may be considered in the context of your overall personal circumstances relevant to your prospects of rehabilitation.
26You were born in Kerang and have one sibling, a sister who is two years younger. You remain close with both your parents and your sister, and you currently live with your mother and your partner. You have been in a relationship, as I have said, with your partner for approximately five years.
27You had a mostly positive and normal childhood with some difficulties at school and in your late adolescence. I note that you report having been prescribed Ritalin as a child, following a diagnosis of attention deficit hyperactive disorder. You commenced Year 12 at high school but did not complete it, and have since worked regularly in a variety of jobs. Along the way you completed Certificate III in Civil Construction in Kerang. This included an earthmoving licence. You have not had any ADHD treatment as an adult.
28Your most serious issue in your personal circumstances is your descent into chronic methamphetamine use in the period before and during the recent offending. This did not reflect long-term use. You had experimented at age 21, but had ceased use for a period of five years before recommencing sometime during 2017. This reported use is consistent with and reflected by the criminal history record.
29You were granted bail in this matter on 28 October 2018 within the structure of a Court Integrated Services Program ('CISP'). It is reported that throughout the program you presented as motivated to reform, you engaged thoroughly and accomplished all requirements of the program. In the process you ceased illicit drug use, did not report any significant levels of depression or anxiety and managed to gain fulltime employment.
30The final report concluded that you now have the skills and supports to prevent you coming in contact with the criminal justice system again. I note that from circumstances surrounding your condition at the time, you were not able to maintain that employment, but nonetheless it was to your credit that you were able to get and maintain the employment that you did.
31Despite the fact that the burglary and theft were committed at and from a shed at a mostly unoccupied property, the offending remains serious. Burglaries are not uncommon in the community, and the public's right to the safety and privacy of their property must be respected and violations appropriately denounced by the courts. The danger of firearms being circulated illegally in the community by theft is a serious concern, reflected in the maximum penalty of 15 years' imprisonment imposed by Parliament for that particular offence.
32Committing an offence whilst under the influence of an illicit drug is not a mitigating factor.
33In mitigation I do take into account the submissions of your counsel and in particular:
· your plea of guilty, both for its practical effect and as an expression of remorse;
· your letter of remorse and apology to the victim;
· your assistance to the police investigation, which I regard as significant - you were open in providing details of the offending conduct, including providing names of others involved and the location of stolen property which led to the recovery of some of the stolen goods - it appears to me that you were as helpful as you could be;
· the support that you have from your partner, your family and others that know you well;
· in particular, the responsible and commendable efforts you have made in response to the opportunity for rehabilitation that was made available to you through the CISP program - whilst the taking of the drug methyl-amphetamine is not mitigatory, the fact that you have recognized its effect, have some insight and have taken serious steps to address the addiction you had developed is a matter that can be accepted in considering your prospects of rehabilitation and whether the imposition of a community correction order as an alternative to lengthy imprisonment is a responsible sentencing option.
34You have been assessed by Corrections Victoria as suitable for a community correction order, and I intend to sentence you to such an order as part of a combined sentence.
35Whilst there is little evidence before me that you presently suffer from a diagnosed mental health condition, there are indications from your past history of possible ADHD and your descent into hard drugs that you remain vulnerable to personality issues which you may not recognize yourself and which may be assisted by assessment and treatment.
36I have therefore included in the conditions of the order that you engage in assessment and treatment for any possible mental health condition. This may assist you in avoiding a similar descent into illicit drugs in the future.
37Mr McClay, could you please now stand.
38On Charges 1, 2, and 3 on the indictment, you are convicted and ordered to serve an aggregate term of imprisonment of 44 days.
39That sentence starts today.
40As to this term of imprisonment, as I noted earlier you were remanded on this matter on 13 September 2018 and served 44 days in custody before you were granted bail. So, pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 44 days be reckoned as time already served under this sentence, and I direct that the fact of this declaration and its details be noted in the records of the court.
41I note that since the pre-sentence detention equals the term of imprisonment, it is my intention by the sentence that I have imposed that Mr McClay not be taken into custody. The term of imprisonment has actually been served by the taking into account of the pre-sentence detention, so I direct that proposition to the custody officers. Do you understand that Mr McClay is free to leave the dock at the conclusion of these sentencing remarks?
42PRISON OFFICER: Yes, Your Honour.
43HIS HONOUR: Thank you. On Charges 1, 2, and 3 on the indictment and on the uplifted summary charge of contravene certain conduct conditions of bail, you are also ordered, with conviction, to serve a community correction order for a period of two years.
44The community correction order commences today and ends on 7 May 2021. The Corrections centre you will attend is the Bendigo Community Correctional Service at 3 William Vahland Street, Bendigo, and you must attend there within two clear working days after the commencement of the order, that is, by 4pm this Friday 10 May 2019.
45All the mandatory terms of a community correction order apply and the additional conditions I impose are that:
· you be under the supervision of a community corrections officer;
· you perform 125 hours of unpaid community work as directed by the regional manager;
· you undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager;
· you undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological, and psychiatric, in a hospital or residential facility if necessary, as directed by the regional manager; and
· you undergo programs or courses aimed at addressing factors relating to your offending, as directed by the regional manager.
46Now, I note here that I have reduced the number of hours to be performed from that which I otherwise would have ordered because of the hours you are already required to serve and are serving on another community correction order that you are presently undertaking. And my intention really was not to undermine your ability to obtain paid employment by being overwhelmed by the number of hours of unpaid community work.
47So, that is the reason I declare for reducing the hours that I otherwise would have imposed for this offending, effectively as a matter of totality in light of the fact that you are already serving another community correction order which has a component of a significant number of unpaid community work hours which may otherwise interfere with your ability to get paid employment, which you really should pursue.
48I realise you have already had the mandatory terms of the community correction order explained to you, both in your assessment process and by the fact that you are undergoing one now, but I must just remind you of them. The mandatory terms are that:
· you must not commit another offence for which you could be imprisoned during the time the order is in force;
· you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011, which essentially sets out your obligations as to your attendance at the community corrections centre- such things as not attending drug or alcohol affected. Do you understand that? [OFFENDER: Yes, I do.]
· you must report to and receive visits from a community corrections officer;
· you must report to the community corrections centre - that is, the Bendigo centre - within two clear working days of the order starting, and as I have already said, that means by this Friday 10 May;
· you must notify a community corrections officer of any change of address or employment within two clear working days after the change;
· you must not leave Victoria without first getting permission to do so from the community corrections officer; and
· you must obey all lawful instructions from and directions of community corrections officers - such directions may be given orally or in writing.
49Do you understand and agree to those conditions, Mr McClay?
50OFFENDER: Yes, I do, Your Honour.
51HIS HONOUR: If you get sick or if there are exceptional circumstances, the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order. In either case you must notify the Bendigo Community Corrections Centre, and I recommend that you obtain legal advice if any of these matters occur.
52However, I must warn you that if you breach any condition of this order you will be brought back to court, and that will be back before me. One of the options open to me is to cancel the community correction order and then re-sentence you on the original charges, and I may also deal with you for the breach by sending you to prison for up to three months on the breach offence as well.
53So Mr McClay, do you understand the consequences of breaching your community correction order?
54OFFENDER: Yes, I do, Your Honour.
55HIS HONOUR: I will ask you to sign the community correction order shortly.
56Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, the total effective sentence that would have been imposed over all charges is 18 months' imprisonment, with a minimum of 12 months to be served before eligibility for parole.
57At the plea hearing the Crown sought a forfeiture order which you did not oppose, and I have made that order today.
58The community correction order can be passed to Mr McClay's counsel, Ms Millar.
59MS MILLAR: Thank you, Your Honour.
60HIS HONOUR: And if you could take it down to Mr McClay and ask him to sign it if he agrees with the terms and conditions.
61MS MILLAR: Yes, Your Honour.
62(Community-based order signed by Mr McClay.)
63HIS HONOUR: You may be seated, sir.
64OFFENDER: Thank you.
65HIS HONOUR: I have signed the order. You can leave the dock now, Mr McClay. Just stay in the body of the court, if you would. All right, thanks very much, Ms Millar. I will be leaving the Bench now. Mr O'Doherty, the other matter is set for 11 o'clock.
66MR O'DOHERTY: Yes, Your Honour.
67HIS HONOUR: So, adjourn until 11 o’clock, thanks.
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