Director of Public Prosecutions v McClintock

[2022] VCC 1245

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-00449

DIRECTOR OF PUBLIC PROSECUTIONS

v

ERRYN MCCLINTOCK

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2021; 31 August 2021; 20 April 2021
DATE OF SENTENCE:	3 March 2022
CASE MAY BE CITED AS:	DPP v MCCLINTOCK
MEDIUM NEUTRAL CITATION:	[2022] VCC 1245

REASONS FOR SENTENCE
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Subject:Obtaining property by deception – theft – attempted armed robbery

Catchwords:              Guilty plea – low-end offending - childhood deprivation – borderline personality disorder – reduced moral culpability

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Tyler Worboyes v R [2021] VSCA 169; Farhan Fariah v The Queen [2021] VSCA 213; Marrah v The Queen [2014] VSCA  119; Director of Public Prosecutions v Codey Herrmann [2021] VSCA 160; Brown v The Queen [2020] VSCA 212; Boulton v The Queen [2014] VSCA 342; Williams v The Queen [2018] VSCA 171

Sentence:                  Aggregate sentence of 106 days’ imprisonment with an 18 month Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Teo	Office of Public Prosecutions
For the Accused	Mr G. Thomas	Greg Thomas Barrister & Solicitor

HIS HONOUR:

1Erryn McClintock, on 20 April 2021, you pleaded guilty to:

(a)   Two charges of Obtaining Property by Deception;

(b)   One charge of Theft; and

(c)   One charge of Attempted Armed Robbery.

Circumstances of offending

2The circumstances of your offending are set out in the Summary of Prosecution Opening dated 30 July 2020.[1]

[1] Exhibit A.

3On 26 October 2019, at Mornington, you used a credit card, which did not belong to you, to buy coffee and clothing valued at $214.35 (Charge 1 – Obtaining Property by Deception).

4Shortly after, again at Mornington, you used the same card to buy food and clothing to the value of $158.31 (Charge 2 – Obtaining Property by Deception).

5On 9 November 2019, at approximately 4:45 PM, you went to Rebel Sport, at Mornington, where you picked up a pair of Nike shoes, valued at $129.99, and two T-shirts, valued at $90, and left the store without paying. (Charge 3 – Theft).

6The store security officer ran after you and, from behind, grabbed the shoebox from you. You turned around and confronted him with a small knife. You said you would stab him if he did not give the box back. When you pointed the knife toward him, using the box as a shield, he managed to knock the knife from your hand and you ran away. (Charge 4 – Attempted Armed Robbery).

7On 12 November 2019, police arrested you arrested and searched your home. They found a cap and a T-shirt similar to the stolen items.

8When police interviewed you, you denied using someone else’s credit card to make purchases. You said you remembered a security guard grabbing you at Rebel Sport and you had made stabbing gestures towards him to defend yourself before running away.

9You were charged and remanded in custody.

10On 25 February 2020, you were admitted to bail.

Criminal history

11You have a limited criminal history.

12On 24 November 2018, you were sentenced to two days’ imprisonment, which was the time you had spent in remand custody, for dishonesty offences.

13On 18 October 2018, you were sentenced to a one-year community corrections order without conviction for theft, assault an emergency worker, criminal damage, fail to answer bail, refusing to accompanying police for a breath analysis and minor driving offences.

Personal circumstances

14You were born in January 1994. You were 25 years old when you offended. You are now 28.

15Your personal circumstances are set out in the neuropsychological report of Susan Carey who assessed you on 31 March 2021.[2]

[2] Exhibit 14.

16You are the youngest of three children. Your brother lives in Melbourne while your sister lives in Perth with her two children.

17You have half siblings from your parents’ previous relationships, but you are not in contact with them.

18You had a difficult and dysfunctional childhood.

19Both your parents had alcohol and drug problems. You said your parents were “never properly together” and that your father used to hit your mother.[3]

[3]Exhibit 8.

20You spent your childhood in and out of foster care and, on occasion, lived with your paternal grandmother.

21You have a history of sporadic homelessness since your teenage years. You were homeless when you offended.

22You reported that you were subjected to physical, sexual and emotional abuse from multiple members of your family from the age of five and into your adolescence.

23You told Ms Carey that your brother regularly sexually abused you for a number of years.[4]

[4]Exhibit 14.

24You said, at the time, you didn’t think this behaviour was abnormal.[5]  When you told your parents, they “brushed it off”.[6] You reported the incident to the police, but later withdrew your statement after your parents told you “if you go ahead with this your brother will go [sic] to prison where he will be raped”.[7]

[5]Exhibit 8 [13].

[6]Exhibit 8 [13].

[7]Exhibit 8 [13].

25Your paternal grandmother was the only positive and consistent adult in your life. She passed away in 2014.

26You left school at 16 and did landscaping work for 4 or 5 years. You have also worked in hospitality. You had not worked for several years before your offending.

27Your mother passed away in 2017. Her death was traumatic for you and made more difficult due to your dysfunctional family dynamics.[8]

[8]CISP Finalisation Report dated 1 March 2022, p.2

28You reported that you still deal with the grief and loss of your mother, aunt and grandmother and find the anniversaries of their deaths particularly difficult.[9]

[9]Exhibit 8 [27].

29In November 2020, your father had a motorbike accident and “broke some vertebrae and shattered his pelvis”. He is now wheelchair-bound.[10]

[10]Exhibit 8, p.3.

30You have helped helping him with daily tasks and by taking him to and from appointments.

31Until recently, you did not have stable accommodation. You are now 6 months pregnant with your first child.

Medical history

32You have a complex mental health and drug history.[11]

[11]Exhibits 8 and 14.

33You reported that your mother was an alcoholic who consumed illicit substances while pregnant with you.

34You reported that you started smoking cigarettes and THC and consuming alcohol between the ages of 8 to 10 years old.[12] By the age of 12, you were consuming drugs intravenously, a habit which progressed to daily use by age 14.[13] You were also consuming up to one litre of wine daily between the ages of 12 and 19.[14]  You began reducing your alcohol consumption after your offending, reporting that you typically had four to five cans of premixed drinks on a fortnightly basis.[15]

[12]Exhibit 8 [34].

[13]Exhibit 14 [13]; Exhibit 8 [35].

[14]Exhibit 8 [35].

[15]Exhibit 14 [12].

35You reported you used illicit substances to deal with psychological distress.[16]

[16]Exhibit 14 [39]

36You admitted you continued to use them after your offending but you have remained abstinent recently.[17]

[17]Exhibit 14 [13]; Exhibit 16, p.2.

37When you were 14 years old, you were diagnosed with depression and anxiety.[18]

[18]Exhibit 14 [16]; Exhibit 8 [24]

38At age 17, you were diagnosed with Borderline Personality Disorder.

39You reported being hospitalised many times for psychiatric treatment, largely on an involuntary basis, and many, many suicide attempts and episodes of self-harm.[19] You have reported drug-induced psychosis and seizures, which resulted in a number of hospitalisations.[20]

[19]Exhibit 14 [16]

[20]Exhibit 17, p.2; Exhibit 14.

40In Ms Carey’s opinion you have “a mild intellectual disability [arising from possible foetal alcohol spectrum disorder] with most of [your] cognitive deficits being mildly-moderately impaired relative to the normal population”.[21]

[21]Exhibit 14.

41In her opinion, there is a link between your cognitive difficulties and your offending.[22]

[22]        Exhibit 14, [38]

42You told her you could not remember the Rebel Sport episode because you were on so many drugs. In her opinion, drugs would have an exacerbated your “difficulties with emotional and behavioural control”.[23]

[23]        Exhibit 14, [38].

43In her opinion, your complex psychological symptoms may deteriorate in prison and, because of them, prison will likely be more difficult for you.[24]

[24]        Exhibit 14, [39]-[40]

Psychiatric court report

44Dr Katherine Tan, forensic care psychiatric registrar, examined you on 7 July 2021 at my request.[25]

[25]        Exhibit 8.

45She noted your traumatic childhood and your psychiatric and polysubstance abuse history.

46She observed, your BPD diagnosis, which was consistent with your presentation and history, is complicated by substance abuse and impaired cognition.

47She recommended psychosocial and drug and alcohol counselling to address your problems.

48She also recommended, considering your mild intellectual disability, you should seek additional supports under the National Disability Insurance Scheme.

Court Integrated Service Program

49On 28 July 2020 you were bailed under the Court Integrated Service Program (‘CISP’).

50For a substantial time, you were sleeping rough, couch surfing or residing in crisis accommodation.[26]

[26]Exhibit 17.

51Your support workers have given you considerable  assistance[27]. After encountering resources difficulties, they were able to find stable accommodation for you.

[27]        Exhibit 17.

52You have benefited significantly from their help.

53Your CISP Case Manager, Ms El-Achkar, has also helped you to prepare a NDIS application.[28]

[28]Exhibit 17.

Prosecution submissions

54Mr Teo, who appeared on behalf of the Director of Public Prosecutions, submitted, while your offending is serious, taking into account your personal circumstances, a composite sentence is within sentencing range.

55He did, however, further submit a further period of incarceration was required to meet the purposes of general deterrence and denunciation.

Defence submissions

56Your counsel, Mr Thomas, relied on a number of documents on your behalf:

·        Plea submissions dated 16 April 2021;[29]

[29]Exhibit 1.

·        CISP Suitability Report dated 16 April 2021;[30]

[30]Exhibit 2.

·        Magistrate’s Court CISP Report dated 28 August 2020;[31]

[31]Exhibit 3.

·        Letter from Caraniche, Drug and Alcohol Counselling Service dated 24 February 2021;[32]

[32]Exhibit 4.

·        McCormack Housing Letter dated 22 December 2020;[33]

·        ATRIUM McCormack Housing Letter;[34]

·        ATRIUM Housing and Support Program Letter dated 27 August 2020;[35]

·        Forensicare Report dated 28 July 2021;[36]

·        Defence submissions dated 24 August 2021;[37]

·        CISP Suitability Report dated 16 April 2021;[38]

·        CISP Progress Report dated 30 August 2021;[39]

·        CISP Progress Report dated 22 November 2021 and AOD Progress Report dated 22 November 2021;[40]

·        Defence submissions dated 22 November 2021;[41] and

·        Neuropsychological Report dated 15 March 2021.[42]

[33]Exhibit 5.

[34]Exhibit 6.

[35]Exhibit 7.

[36]Exhibit 8.

[37]Exhibit 9.

[38]Exhibit 10.

[39]Exhibit 11.

[40]Exhibit 12.

[41]Exhibit 13.

[42]Exhibit 14.

57Mr Thomas submitted, when you had accommodation problems, it was difficult for you to engage in the CISP program., However, as subsequent reports from Ms Bojana Mladenovic and Ms Sahar El-Achkar, indicate, since you have had stable accommodation, you have made substantial personal progress.[43]

[43]Exhibit 16, p. 2; Exhibit 17, p. 3.

58He further submitted, with the current supports and greater stability in your life place, you are in a position to comply with a Community Corrections Order.

59He submitted that a Community Corrections Order would promote your rehabilitation whereas the imposition a further term of imprisonment would compromise the progress you have already made.

60He submitted a term of imprisonment, equivalent to the time you have served in custody, in combination with a CCO, conditioned to promote your rehabilitation, is the appropriate sentence.

Consideration

61Obtaining property by deception and theft carry a maximum penalty of 10 years’ imprisonment.

62Armed robbery carries a maximum penalty of 25 years’ imprisonment. It is very serious offence and, ordinarily, a significant prison term is warranted.

63However, circumstances of the crime vary greatly and prison does not always follow.

64Considering:

(a)   your crime was spontaneous;

(b)   you only lashed out when you were confronted;

(c)   your victim was not hurt but no doubt was put in fear; and

(d)   the value of the items you stole was relatively modest

I consider your offending is a relatively low-end example.

65While it is no excuse, I accept you dishonestly used the credit card to obtain staple items in circumstances where you were homeless and had no money.

66You have a limited criminal history.

67There are a number of mitigating factors which I must also take into account.

(a)   Firstly, you are entitled to a demonstrable sentencing discount for your early guilty plea. While the courts continue to deal with the adverse effects of the COVID-19 pandemic, your guilty plea has greater utilitarian benefit than in normal times because it alleviates the current strain on the justice system.[44]

(b)   Secondly, your childhood disadvantage and deprivation is significantly mitigating.[45] I accept it contributed to your criminal behaviour and, to an extent, explains it.[46]

(c)   Thirdly,  because your borderline personality disorder, shaped by your traumatic childhood experiences, is also contributing factor in your offending, your moral culpability is reduced and general and specific deterrence are to be moderated.[47]

(d)   Fourthly, further incarceration will likely exacerbate your psychological problems, making prison more burdensome for you.[48]

[44] Tyler Worboyes v R [2021] VSCA 169, [35] and [39].

[45] Farhan Fariah v The Queen [2021] VSCA 213.

[46] Marrah v The Queen [2014] VSCA  119, [16].

[47]Director of Public Prosecutions v Codey Herrmann [2021] VSCA 160; Brown v The Queen [2020] VSCA 212.

[48] Exhibit 14, [39] and [40].

68I also take into account the increased hardship of prison during the public health pandemic.

69I accept you have advanced your reformation with external assistance. You report you have abstained from illicit drug use since learning about your pregnancy. Your caseworkers stated it is a “significant motivating and protective factor in your commitment to change your behaviour.[49]

[49] Exhibit 17, p.2.

70A Community Corrections Order can enable the punitive and rehabilitative objectives of sentencing to be served at the same time even in cases of very serious offending.[50]

[50] Boulton v The Queen [2014] VSCA 342; Williams v The Queen [2018] VSCA 171, [47].

71I accept there is a risk, returning you to prison, would compromise the progress you have made, in the community, towards your rehabilitation.

72Overall, I am satisfied a term of imprisonment, which does not require you to serve further time in custody, in combination with a community corrections order, can achieve all sentencing purposes in your case.

73I have had you assessed for a Community Correction Order and you have been found suitable.

74I accept the assessing officer’s recommendation for supervision and drug and alcohol and mental health treatment to promote your rehabilitation.

75Because your crimes are of a similar character and you committed them within a relatively short period I will impose an aggregate sentence upon you.

Sentence

76Please stand Ms McClintock.

77By the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation. 

78Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner to you:

(a)   On Charge 1 – Obtaining Property by Deception;

(b)   On Charge 2 – Obtaining Property by Deception;

(c)   On Charge 3 – Theft; and

(d)   On Charge 4 – Attempted Armed Robbery

you are sentenced to 106 days’ imprisonment in combination with a Community Corrections Order.

79The duration of the Community Corrections Order is 18 months and will commence today.

80In addition to the core conditions of a Community Corrections Order, I impose the following special conditions:

(a)   you are to attend for supervision;

(b)   you are to attend for drug and alcohol treatment and rehabilitation; and

(c)   you are to attend for mental health treatment and rehabilitation.

81You are to report to the Broadmeadows Justice Service Centre within 2 working days.

82Pursuant to section 18(4) of the Sentencing Act 1991 (Vic), I declare you have already served 106 days of your sentence by way of pre-sentence detention.

83Whilst there is some artificiality in the process, doing the best I can, I declare, but for your plea of guilty, I would have sentenced you 18 months’ imprisonment and imposed a  minimum non-parole period of 9 months.

84By consent, I make orders for disposal of a knife and forfeiture of a baseball cap and T-shirt.

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