Director of Public Prosecutions v McCracken (a pseudonym)

[2018] VCC 1233

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

AT SHEPPARTON
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

PERCY MCCRACKEN (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Shepparton
DATE OF HEARING:	10 August 2018
DATE OF SENTENCE:	10 August 2018
CASE MAY BE CITED AS:	DPP v McCracken (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 1233

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	Mr R. Hammill	Office of Public Prosecutions
For the Accused	Mr A. Marshall	James Dowsley & Associates

HIS HONOUR:

1Percy McCracken,[1] you have pleaded guilty to one charge of armed robbery.  That crime carries a maximum penalty of 25 years' imprisonment.  You have also pleaded guilty to two uplifted summary charges, and in respect of each of those, I simply imprison you for a period of one month and direct that it be served concurrently and with the head sentence that I impose insofar as the armed robbery is concerned.

[1] Percy McCracken is a pseudonym.

2You are now 26 years of age, you pleaded guilty at the earliest reasonable opportunity, you had indicated, at least subsequently, appropriate remorse.  You made admissions to police at least as to your involvement, though it might have been difficult to deny if DNA was present.

3You must also of course get the utilitarian benefit of that plea of guilty.  Trials such as this, when they do run, are dreadful experiences for the witnesses that are involved, and you at least get the benefit of having saved them from that experience.

4You do have a significant number of prior convictions, they are nearly all for dishonesty, drugs and driving, though I do note that you have one for possession of a firearm.  You have been gaoled before, and you are no stranger to the system.

5What you have done in this situation is give an undertaking to give evidence against a co-accused, and I direct that this sentence is passed bearing in mind that undertaking, and I direct that that be put into the records of the court.

6Insofar as that undertaking is concerned, your counsel strongly relied upon parity in this situation and validly so.  Your undertaking is in relation to an accused who was named by your other co-accused, Ms Cameron,[2] who I will refer to shortly.  Up until then, police had no idea who he was, so her undertaking involved both him and you, and would obviously have much greater benefit.  In fact, your undertakings have been given in the knowledge, as I think I have just said, that that accused has fled the jurisdiction, and is now believed to be in Italy.

[2] Margo Cameron is a pseudonym.

7However, be that as it may, you have given it and you must give a benefit for it. 

8I also take into account that having given that undertaking, you intend to remain in mainstream in the gaol system, and that will be an anxiety to you over a period of time, even though I am going to anonymise the sentencing remarks.

9I also take into account a letter that you have purportedly written and given to your counsel, which has been given to me, indicating your purported change in attitude over the last period of time.  As I say, I take that into account.

10Also during the course of the time that you have been on remand, you have done 91 days for other matters, and I take that into account in a general way as what is known as Renzella time.

11A summary of the offending is that you and one Margo Cameron, and a third person, basically committed an armed robbery on the Hilltop Golf and Country Club in Tatura.  You were armed with a machete, and another male co-accused was armed with a rifle.  I accept on the basis of the charge that you had pleaded to that it was a longarm.  I notice that Lacava J, who sentenced your co-accused, seemed to think it was a double-barrel sawn-off shotgun, which whilst it makes no difference to the victims, I think it does lessen the criminality to some extent.

12In any event, at around about 10 pm on 7 December 2016, Ms McWinnie and Ms Hooper were working at that golf club.  They were getting ready to lock up for the night.  Ms Hooper was in the gaming room emptying out the money from the Pokie machines.  Ms McWinnie was in the cashier's office, which is a glassed-off area in the gaming room.

13A man appeared at the doorway holding a long machete.  That man was you.  You said "Give me the money".  You were in all black clothing wearing long sleeves.  Ms McWinnie believed you had gloves.  You had your face covered by a black balaclava or a bandana.

14Ms Hooper, who remained in the gaming room, saw you waving the machete in Ms McWinnie's direction.  Ms McWinnie observed a second male further back than you who was standing in the service area of the bar behind you, and he was holding a rifle.  He was also dressed in all black.  That rifle was being pointed at her. 

15You took a couple of steps inside the office so that you were right next to Ms McWinnie. She was then counting notes. You grabbed the notes and then grabbed a container from the safe, as I understand it, and ran from the office.  While this was happening, the second male kept the gun pointed at Ms McWinnie.

16Ms Hooper saw the two other people, that being obviously Cameron and the third man, and essentially supported what Ms McWinnie had said in relation to that.  The police investigation extended over some period of time, there were endeavours to avoid detection.  I do not think I need to go to the leaving of cards and the ultimate way in which police were able to solve it.

17As I understand it the real clue was that you had left a part stocking on the golf course, which gave the DNA of both yourself and of Ms Cameron, and police were able to go from there.  In the end, you were interviewed and gave yourself a lesser role than you really had, but you did at least make admissions.

18Armed robberies are always serious crimes, and in my view very serious crimes when they are carried out on people just simply doing their job in an isolated situation.  The three of you, armed with terrifying weapons, bailed up two totally innocent women, terrified them, gave them psychological difficulties that will probably last for a very long period of time, all for $16,000.

19Of course, the application of general and specific deterrence, as well as denunciation and obviously punishment is paramount.  It is my view that people who have not been in the court system or have not known people who have experienced this sort of offending against them have the faintest idea of the psychological impact that it has.  I am not going to read out the victim impact statements in totality.  Those who matter have heard them read out by the prosecutor in court.

20However, I do put them into the transcript, Ms McWinnie said - this is partially what she said, obviously:

"I did have counselling for some sessions, and despite it being emotionally draining I did experience some relief, but it never lasted long.  I couldn't go back to night shifts at work for months afterwards, and when I did start I was a mess of nerves, which I hid, or I tried to because I felt I should be getting better.  Closing time was very stressful for months". 

21She says that she would go home and drink to calm her nerves just so that she could sleep.  Sleep became elusive.  She then goes on to say, describing the other difficulties that she has:

"I felt I was the senior staff member, and by not doing this [that is, having locked up], I have compromised Jess and my safety.  I felt guilty over not letting family and friends know I wasn't coping, but still not wanting it known."

22Ms Hooper in her victim impact statement says that since the armed robbery she has been a nervous wreck:

"Since the robbery, I have experienced strong feelings of guilt because the weapons were pointed at work colleague and friend Rosalie while I was left to watch and unable to do anything.  I felt so defenceless and vulnerable.  Even now I know there was nothing I could have done, but really just hate the fact that I could not do anything to help Rosalie.  These feelings of defencelessness and guilt are still with me, and I will constant question my ability as a mother."

23She goes on:

"Other workers have moved on and forgotten about the robbery, but it is something that I will be forced to live with for the rest of my life."

"I struggle with the psychology sessions I am needing to attend because of the robbery.  I have ongoing psychology appointments and medical assessments at my local GP every month for rehab due to the traumatic event.  I've had to attend numerous assessments to receive compensation for the lost hours of work just to keep my life on track."

24Very simply and very eloquently described, the devastation that this sort of offending occurs.  This is not about thieving, it is about hurting and damaging very much, totally innocent people.

25They are the matters that the Crown put to me, and obviously a gaol term of significant proportions is inevitable.  So far as parity is concerned, your co-accused Cameron, who it would appear was the one who was able to provide the information for the carrying out of this armed robbery, received a sentence of three years with a minimum term of two.  She had given an undertaking in the same way that you have, but her undertaking in my view is of much greater value and was of much more assistance than yours is, or can be.  However, you do get the benefit of it.

26Realistically, the only difference in one sense is the undertaking.  I am not going to quantify an undertaking.  As I have indicated I think during the course of the plea, in terms of the s.6AAA that was indicated by the learned sentencing judge who sentenced the co-accused, mine will be significantly less than that.  That is just what happens when different judges have to sentence different people, and I am in no way bound, but it is one of the reasons we try to avoid this situation arising.

27But in any event, tendered on your behalf was a report from Dr Cunningham.  They also show that you have clean urine screens from gaol, and you have been doing courses in gaol.  Fortunately in one sense, since you have been on remand, you have been able to do those courses, and you have done a number of them, and that is very much to your credit.

28Your counsel provided succinct and helpful submissions going through your background, and points a number of matters out.  Obviously you are 26 years of age, but a year younger when all this occurred, and I would regard as still a relatively young offender.  You, as I understand it, were considerably younger than the other offenders.

29He went through your personal history, you were at school until Year 9, when you left to commence work.  You worked in the panel beating industry for some years, but you have had lengthy periods of unemployment.  At the time of this arrest, you were working as a concreter. 

30Dr Cunningham has diagnosed you as suffering from depression and anxiety, and I have read his report, and I have no reason to doubt that.

31The report of Dr Cunningham goes through your history in detail, and points out that you have an extensive drug history.  It would seem, in fairness to you, that you were very close to your grandparents, that your mother has emotional/mental difficulties, and when your grandparents died in the mid-2000s it had a dramatic effect on your life.

32A stepfather, for want of a better term, died in a car accident in 2014, and apparently you had attached to him in some way.  That did not assist either.  You had been in a relationship with the co-offender, who is clearly significantly older than you, and as I have said, she was the one who provided the information necessary for the carrying out of this armed robbery.

33You have children, who you desire to re-engage with, that so far has proved fruitless even though you have been making efforts in relation to it.

34Dr Cunningham as I said goes through your history, and it is something we see so often here, using cannabis at the age of 12 or 13, started using amphetamine, methylampethamine around about 10 years ago.  You went to numerous schools, different primary schools, different high schools.  He points out that one of your problems with the depression and the anxiety is that you constantly ruminate about the death of your grandparents and continue to grieve them.  You told him that you feel hopeless with regard to ever seeing your children.

35He goes on, as I say, to deal with other matters, but that is the basic gist of all this.  You have been to gaol before, you have offended before, you know what gaol is like, and you must have had a pretty good idea of what the potential consequences of offending such as this would be.

36The prospects of your rehabilitation are up to you.  The risk of your reoffending would have to be regarded, in my view, as pretty high.  If you can stay clear of drugs, which I accept that you have over the last - slightly over a year, then you may be a chance.  It is going to be a matter for the Parole Board into what circumstances you are released, but they are going to have to be circumstances, I would have thought - and it is really a matter for them, of fairly constant supervision and support systems to attempt to avoid at least your use of drugs and the subsequent offending that has occurred, escalating to the level for which you are to receive a sentence today.

37In the end, I have to impose a sentence which reflects the seriousness of what you did, the damage of what you did to people, the taking into account that you still are a relatively young man, and if your drug problems can be addressed and contained, then hopefully you can be a useful member of this community.

38But the fact of the matter remains, it is serious.  On the charge of armed robbery you are sentenced to be imprisoned for a period of four years.  As I have indicated, insofar as the two summary matters, one month on each, concurrent.

39I direct that you serve a minimum term of three years before becoming eligible for parole.

40Pursuant to s.6AAA, which is very difficult in this particular situation for the reasons I have outlined, and I will not labour it, I say that but for your plea of guilty and the way the matter has been conducted, I would have sentenced you to be imprisoned for a period of six years with a minimum term of four and a half years.

41I direct that 374 days be reckoned as having been served under this sentence.

42Any other orders that I have got to make, if anyone knows?

43MR HAMMILL:  The disposals.

44HIS HONOUR:  Done all those.

45MR HAMMILL:  They are done?

46HIS HONOUR:  They were done before.

47MR HAMMILL:  Thank you Your Honour.

48HIS HONOUR:  All right?

49MR HAMMILL:  Yes.

50HIS HONOUR:  All right, yes, thank you, take him down.  Yes, 11 o'clock Monday.

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