Director of Public Prosecutions v McCrory, Michael
[2013] VCC 183
•4 March 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02401
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL McCRORY |
---
JUDGE: | HER HONOUR JUDGE HARBISON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 4 March 2013 | |
CASE MAY BE CITED AS: | DPP v McCrory, Michael | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 183 | |
REASONS FOR SENTENCE
---
Subject:attempted armed robbery, theft, common law assault
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Malobabic | |
| For the Prisoner | Ms K. Rolfe |
HER HONOUR:
1 Michael McCrory, you have pleaded guilty before me to one charge of attempted armed robbery, one charge of theft, one charge of common assault and one charge of handling stolen goods.
2 The circumstances of your offending are set out in the prosecution summary which was made an exhibit on the plea. Your counsel agreed that the matters contained in that summary were correct.
3 The charge of attempted robbery relates to your actions on the night of 27 September 2012, some five months ago. On that night at approximately 10.45 p.m. you entered a 7‑Eleven store. After initially paying for some chewing gum you suddenly lunged over the counter attempting to take money from the till and in doing so threatened the employee of the store with an iron bar. Your victim, showing both courage and presence of mind, managed to wrest the iron bar out of your hands. You eventually desisted and ran out of the store. You were subsequently identified from the CCTV footage at the store.
4 This activity is the subject matter of charge number 1.
5 On the same night, but in the early hours of the next morning of Friday 28 September 2012, you flagged down a taxi. When the taxi driver had delivered you to your destination you paid the fare but you then stayed in the taxi for a while. When the driver asked you to get out you leant over and grabbed the taxi driver's wallet containing $300 and also grabbed an EFTPOS machine. The taxi driver remonstrated with you and tried to stop you taking the money and the machine. You fell to the ground out of the car during the course of a brief struggle with him. As with your first victim, your victim on this occasion, the taxi driver, showed great courage in trying then to apprehend you. However, you then held an object up to him which he thought was a knife. It was, in fact, a spoon. The taxi driver desisted from trying to restrain you, although he managed to retrieve the items which you had just stolen from him.
6 Your action in stealing the wallet and the EFTPOS machine from the taxi driver is the subject matter of charge number 2 and your action in assaulting the taxi driver, as I have described it, is the subject matter of charge number 3.
7 You were apprehended by police later on that same day. At your house police found a Blackberry mobile phone which was able to be identified as stolen property. You told police that you had bought it in a hotel. Your possession of this mobile phone is the subject matter of charge number 4.
8 You were interviewed on that same day and made full admissions. You said that you had committed these crimes because you had bills to pay. You said that you had found the metal bar on the ground. You admitted having committed the theft and the assault on the taxi driver and admitted that you knew that the Blackberry mobile phone was stolen.
9 I was told that one of your victims cannot be located and the other has declined to make a victim impact statement. However, it's clear that your victim on each of those occasions I have described has undergone a very frightening experience. Your actions took place late at night or early in the morning. Each of your victims was a soft target. The taxi driver was alone and so I understand was the store employee. Both, as I've said, showed considerable courage in defending themselves and trying to apprehend you.
10 You have thus committed serious violent offences. In sentencing you I need to pay particular attention to the principle of general deterrence. It is the right of all citizens to be able to undertake their work without being subjected to the violence which you displayed. Armed robbery, particularly on such soft targets, is prevalent in the community. The courts have a considerable responsibility to send a message to the public that armed robbery or attempted armed robbery is likely to be visited with a custodial sentence.
11 The offence of attempted armed robbery carries a maximum penalty of 20 years' imprisonment. The offence of theft carries a maximum penalty of 10 years' imprisonment. The offence of handling stolen goods carries a maximum penalty of 15 years' imprisonment and the offence of common law assault carries a maximum penalty of five years imprisonment.
12 The prosecutor conceded during the course of the plea that this is not the most serious example either of the attempted armed robbery or of assault. I accept your counsel's submission that your actions were relatively unsophisticated. I accept that you made no real attempt to disguise yourself. Further, each of the occasions which I have described was of relatively short duration and appeared to be doomed to fail. Both appear to have been spur of the moment decisions.
13 On both occasions you appear to have been overwhelmed by your victim who was equal in strength to you or perhaps even physically stronger.
14 However, I accept the prosecutor's emphasis on the fact that the attack was carried out with a metal bar in relation to the attempted armed robbery which could have inflicted substantial injury. You held that metal bar in close proximity to your victim and your victim told police that he was shocked and scared by the incident.
15 I accept also the prosecutor's emphasis on the fact that there were two discrete incidents which you committed and which I am to sentence you for today.
16 The prosecutor's submission to me was that the appropriate sentencing range, having regard to all of these matters, was between 18 months and two years with a non‑parole period of 12 to 15 months. Your counsel agreed that a term of imprisonment was appropriate. She made no submissions as to the length of that term, but submitted that a short non‑parole period was appropriate given the matters in mitigation to which I will now refer.
17 Your counsel emphasised that you have pleaded guilty at the first available time. Your plea of guilty is to be taken into account in your favour. It has, of course, avoided the cost of a trial and the trauma of the victims having to give evidence.
18 Your counsel also asked me to take your plea of guilty and your co‑operation with police as being evidence of your remorse. I do so, although I concede, as the prosecution argued, that apart from this plea of guilty there is very little other positive evidence of your remorse before me.
19 Your counsel focused upon your past criminal history and your efforts so far at rehabilitation. Her submission to me was that you have attempted to take some positive steps to control your drug addiction. Until that addiction is controlled, Mr McCrory, it appears that you will have no realistic chance of rehabilitation.
20 On the plea I received a neuro psychological assessment from a Dr Julia Herman. This report was not prepared for this plea. It is dated 2009 and was prepared for a previous court appearance.
21 The report details your personal history. Tragically both of your biological parents were heroin users and from the time you were born you were addicted to heroin. You were placed on methadone as a new born baby. You were adopted by an aunt with whom you have still a very close connection. She has visited you in prison and is your strongest family support.
22 You were educated to Year 10 but unfortunately about the age of 15 you started abusing drugs. Your drug use quickly escalated and your life turned into a downward spiral. I was told that you have had 40 drug overdoses, you have been resuscitated several times because of drug use and you have been admitted to hospital at least 20 times for drug related treatment. You also suffer from epilepsy.
23 Dr Herman expresses the view that your exposure to heroin in your mother's womb has likely made you vulnerable to developing cognitive deficits and that those cognitive deficits have of course also been influenced by your heavy substance use as I have described it and your multiple overdoses.
24 You now suffer from a moderate impairment to your memory function and a moderate impairment in the area of problem solving and reasoning skills brought about by your drug use.
25 Dr Herman's recommendation is that given that your offending behaviour is closely linked to your dependence on drugs you should cease the use of all drugs and abstain from alcohol consumption. This has proven easier to say than to do.
26 Your prior criminal history commences in 1999. It runs to almost 20 pages. By far the majority of the offences you have committed are shop stealing and drug possession and use. However, you also have several priors for burglary as well.
27 You have received in the past many merciful dispositions. You have received the range of available treatments including community‑based orders, detention in a Youth Training Centre, fines, suspended sentence and prison terms.
28 You have spent significant time in prison, Mr McCrory. I note in particular that you have a prior offence for armed robbery for which you were sentenced in this court in May of 2001. At that time you were 19 years of age. You used a meat cleaver in what the sentencing judge described as a lawless frolic involving three counts of armed robbery and three counts of theft. Principally because of your young age at the time you were sentenced to prison for an effective term of two years but the prison sentence was wholly suspended. Unfortunately just over a year later you were again before the courts on charges of theft and trafficking in heroin and sentenced to prison.
29 Your counsel told me that the longest period you have spent in the community in recent years was a period of 20 months immediately preceding the commission of the offences for which I am to sentence you today. She submitted to me that you have made significant progress over those 20 months.
30 I received a report from Kylie Smith, a support worker who has been assisting you over that time. She describes how you have been enrolled in a Certificate 2 in Animal Studies and she describes your co‑operation in participating in a pharmacological co‑therapy program which involves regular liaison with and monitoring from a doctor. You hope to work towards a achieving employment in the future in the animal services industry.
31 During the time that you were supervised by Kylie Smith you obtained stable housing and presently have a Housing Commission flat. Unfortunately such accommodation is usually only held for six months. It is not clear whether you will lose that accommodation as the result of the order for imprisonment which I will make today.
32 However, I accept the submission of your counsel that your involvement in studying, as I have described it, has indicated a significant willingness to turn your life around. The fact that you have been able to continue with this course despite your acquired brain jury, despite the fact that you are on methadone for your drug addiction and despite the fact that it involves significant travel represents a glimmer of hope that you may at last be on the road to rehabilitation.
33 There is more evidence of this from the fact that you have made an effort whilst on remand to complete several courses and that you are undertaking another course at the moment.
34 In March 2012 you were sentenced to undertake a Community Corrections Order. Although you breached that order your counsel asks me to see the report from the Community Corrections Office as a further indication of the effort you have shown to try to break both your addiction and to make yourself employable. There have been some positive urine screens in relation to that order but overall the report on your performance from the Community Corrections officers is a positive indication for the future.
35 Of course, this provision of accommodation which I have described, and your focus upon obtaining a qualification, did not stop you from committing the offences for which I am to sentence you today, so any estimate as to your prospects for rehabilitation must remain guarded.
36 I accept, however, your counsel's submission that although you have an extensive prior criminal history there are not many prior matters which involve violence. The fact remains, however, that the extent of your criminal history and your continued reoffending despite receiving many therapeutic dispositions reflects poorly on your prospects for rehabilitation unless you are able to break your drug habit.
37 You have told your counsel that you are familiar with gaol but you have found your present period of incarceration the toughest because you have left something behind; that is you have left behind your accommodation and the prospect of finishing study and obtaining employment. I accept your counsel's submission that at the time of your offending you were living a chaotic lifestyle and I accept that your answers to the record of interview show some insight into the impact your actions have had on your victims and some indication of remorse.
38 Mr McCrory, I intend to sentence you to a period of imprisonment today. I intend also to impose a shorter than usual non‑parole period. I do this with the aim of allowing you the maximum time to be supervised on parole in order to assist to prevent you relapsing into your past life of addiction, to assist you to develop some stability in your life and to address the possibility that you may be able to retain the housing commission accommodation which has been described in your plea.
39 Mr McCrory, on charge 1 of attempted armed robbery you are convicted and sentenced to be imprisoned for 18 months. On charge 2 of theft you are convicted and sentenced to be imprisoned for ten months. On charge 3 of common law assault you are convicted and sentenced to be imprisoned for six months. On charge 4 of handling stolen goods you are convicted and sentenced to be imprisoned for three months.
40 I propose to order some cumulation on those sentences to reflect the fact that you come before me to be sentenced in relation to two quite separate incidents, even though those incidents occurred close in time.
41 I nominate charge 1 as the base sentence. I order that six months of the sentence imposed in charge 2 be served cumulatively on the sentence imposed in charge 1. I order that otherwise the sentences imposed by me today be served concurrently.
42 Mr McCrory, this makes an effective sentence of imprisonment of two years and I will order that you serve 12 months of that sentence before being eligible for parole.
43 I note that you have now served 157 days in custody for this offence and for no other. Accordingly, pursuant to sub‑s.18(4) of the Sentencing Act I declare that that period of days be reckoned as time already served under the sentence passed today.
44 The Crown has sought a disposal order, Mr McCrory, and I have signed the disposal order.
45 A compensation order has also been sought in relation to Louise Van Loon in relation to compensation for her mobile phone. That order, as I understand it, is not opposed by your counsel. I will therefore order that you pay Louise Van Loon $869 as compensation in respect of the phone.
46 Section 6AAA of the Sentencing Act requires me to state the sentence and non‑parole period that would have been imposed but for the plea of guilty and pursuant to that section I state that but for your guilty plea I would have ordered that you be convicted and sentenced to an effective term of imprisonment of three and a half years and that you serve a period of two and a half years' imprisonment before being eligible for parole.
47 Are there any other matters?
48 COUNSEL: No, Your Honour.
49 HER HONOUR: Yes, if the order can be confirmed. You can take a seat for a minute, Mr McCrory.
50 MS ROLFE: Your Honour, could I seek leave to briefly approach Mr McCrory?
51 HER HONOUR: Certainly.
52 (Order confirmed.)
53 HER HONOUR: Yes, thank you. Remove the prisoner.
54 I'll now adjourn the court until 2.15 Madam Tipstaff.
---
0
0
0