Director of Public Prosecutions v McCulloch

[2022] VCC 2390

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-21-01845

DIRECTOR OF PUBLIC PROSECUTIONS

v

Rachel McCulloch

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 September 2022
CASE MAY BE CITED AS:	DPP v McCulloch
MEDIUM NEUTRAL CITATION:	[2022] VCC 2390

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Application to cancel – Home invasion – Theft – Possession of a drug of dependence – dishonestly receive stolen goods – Drug and Alcohol Treatment Order

Legislation Cited:          Sentencing Act1991(Vic)
Sentence:  19 months with a non-parole period of 8 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Harrison	Office of Public Prosecutions
For the Accused	Ms N. Newbound	Victorian Legal Aid

1His Honour: Ms McCulloch, on 15 November 2021, I sentenced you to a Drug and Alcohol Treatment Order (DATO) with a custodial length of 26 months. You had pleaded guilty to a charge of home invasion.

2The circumstances of this offending were that you and two of your associates had gained entry to an apartment building at 422 Collins Street by pressing the buttons of various apartments until somebody opened the door. Once in, you went and rifled through mailboxes, and then the three of you went up to the eleventh floor.

3It is not quite clear to me why you alighted upon a particular apartment. It may have been that, trying all the doors, that was the first door that you came upon that enabled you to open it. But, unbeknownst to you, Ms Lucy Tye was home, upstairs in her duplex apartment. She heard a noise downstairs and came down to find you and your two associates standing in the living area. That, for her, was a most frightening experience.

4Your victim recalls being frozen and in complete disbelief. She grabbled hold of you to prevent you from leaving. One of your associates pushed Ms Tye to the ground, enabling you to get free. You were fortunate that she did not suffer any injury.

5On 15 November 2021, at your Determination Hearing, I heard all about you, and the fact that up until roughly the age of 16, your life had progressed like that of many young women living in the south-eastern suburbs of this city.

6However, it seems that you began to socialise, and go out with your friends to nightclubs, where someone introduced you to ecstasy and MDMA. By the age of 18, you were going back to people’s homes after the clubs closed and were introduced to methamphetamine.

7At that, so far, is where your story ends, for you have become dependent on methamphetamine, to such an extent that even whilst on a DATO you cannot stop using.

8You left school before your final year 12 exams. Your parents, understandably, were very firm with you. They told you, ‘we are here to help you, but you cannot live in our house if you are going to use drugs’. Faced with that choice – your family or drugs, you chose drugs and so you left your family home.

9You attended resi rehab for 28 days and engaged in some post discharge AOD services. Indeed, I am told that you managed to remain abstinent for a period of up to nine months in the community before you relapsed. You have not been able to identify any particular trigger for that relapse.

10Your family were not prepared to support you and your drug use, and so you lived on the street. You struck up inappropriate relationships with inappropriate partners and associates, and you became completely immersed in your drug world of methamphetamine and deception. Not surprisingly, you began to commit crime – the acquisitive offences, dishonesty, and the like.

11After hearing about you, and submissions of counsel on your behalf, I placed you on a DATO with a custodial period of 26 months. It is fair to say that you struggled with compliance on that order. Of concern, was the fact that the court and clinicians were doing their very best to help you, but you either could not or would not engage. Your clinical team had found you a place at the women’s therapeutic day program, but you failed to attend the intake assessment.

12Further efforts were made to get you to engage, and you failed to engage on two latter occasions. Meanwhile, your sanctions were mounting. So, on 5 January, your sanction count passed the threshold for ordering you to serve activation prison days. I remember having a conversation with you on that day, and encouraging you to get your sanctions down so as to try and keep a space available for you at rehab. However, the following week, your sanction count had risen even further, you had disengaged and more importantly, you did not turn up for your review hearing.

13A warrant was then issued for your arrest on 13 January, and an application to cancel was commenced. You did not appear at the first hearing of the application to cancel, and on 10 February your order was suspended. Effectively, that’s was where matters lay until 22 August when an officer recognised you and so the warrant was executed.

14Ms Newbound, on your behalf submitted that the Court should provide you with an opportunity to come back on the order. As I think I made clear, no one can be on this order and just abscond, certainly not for that period of time, and that is why the order was cancelled. It may be that this was too early for you. It may be quite simply that you are not ready to grasp the opportunity. Recovery is not lineal, it may be there are several, or many attempts.

15I am satisfied that it is appropriate for me to make an order activating some or all of the custodial part of the original custodial term of 26 months. I have taken into account your compliance, and I have given you as much benefit as I can.

16I have regard to your youth, you are clearly in the throws of a terrible dependence. And as you have said on the hearing, ‘I don’t want to keep using drugs, but I don’t know how to stop’. That, illustrates, unfortunately, your situation and that of many others. The tragedy is that you were given an opportunity and all you had to do was reach out. It is important you understand, Ms McCulloch, that if you carry on using methamphetamine, there are no surprises as to what your future will be. It is not good for your health.  You will be committing further offending, longer and longer prison sentences, and by the age of 40, should you still be alive, you will have no teeth and no hope.  You say you do not want to keep using drugs. I really hope that at a later stage you are able to properly engage.

17I am going to activate 19 months of the order, but I am going to direct that you serve only 8 months before becoming eligible for parole.

18I am told that your father, Mr McCulloch still supports you. You are really fortunate because for many parents, it is just too painful to lose their children to a living death.

19There is great work being done in Dame Phyllis in the field of AOD treatment. You would be well advised to try and access what you can there. It is a most progressive institution at the moment in this field. You owe it to yourself, Ms McCulloch.