Director of Public Prosecutions v McDevitt
[2016] VCC 1668
•10 November 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-01202
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALLAN MCDEVITT |
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| JUDGE: | HIS HONOUR JUDGE GRANT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 October 2016 |
| DATE OF SENTENCE: | 10 November 2016 |
| CASE MAY BE CITED AS: | DPP v McDevitt |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1668 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Ballek | OPP |
| For the Accused | Mr M. Stanton | Victorian Aboriginal Legal Service |
HIS HONOUR:
1 Alan McDevitt, you have pleaded guilty to one charge of theft, one charge of culpable driving causing death and one summary charge of unlicensed driving. The maximum penalties for these offences are as follows:
· Culpable Driving Causing Death - 20 years imprisonment;
· Theft- 10 years imprisonment; and
· Unlicensed driving - 3 months imprisonment or a fine of not more than 25 penalty units.
2 It is my task as the sentencing judge to impose upon you an appropriate and just sentence, after taking into account both the circumstances of the offending and the circumstances personal to you.
3 So far as the circumstances of your offending are concerned, these are conveniently and comprehensively set out in a document entitled “Summary of Prosecution Opening on the Plea”, which the prosecutor, Mr Ballek, read in open court. I annexe that document to, and incorporate it in, these remarks.
4 Mr McDevitt, this is serious offending. You stole a motor vehicle and you were an unlicensed driver. You drove the vehicle whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle. Shortly after stealing the vehicle you were seen to be driving erratically in a nearby street. Immediately prior to the collision that caused the death of Ms Concetta Guzzo you were driving at an estimated speed of 95 kilometres (in a 60 kilometre zone) and you were wholly on the wrong side of the road.
5 An analysis of the preliminary breath test conducted by the police after your arrest indicated a minimum BAC reading of 0.109 per cent. In this case general deterrence is a paramount sentencing consideration. Principles of denunciation and just punishment are also highly relevant.
6 Your offending has had a devastating affect on the victim’s family. The victim’s partner, Mr Enzo Bassan, and the victim’s daughter, Ms Patricia Russo, have provided victim impact statements that describe their grief, distress and suffering. Mr Bassan is seeing a psychologist to help him through his grief. Ms Russo has suffered major psychological harm with related physical manifestations. She concludes her statement with the following words – “My mother was all we had and the sense of loss is indescribable. She will never see her grandchildren grow and the best years of her life were taken from her. I long to hear her calling my name and the sound of her laughter.”
7 You do have relevant prior convictions. At the Broadmeadows Magistrates' Court on 14 December 2004, for offences of exceed the prescribed concentration of alcohol and careless driving, you avoided conviction and the matter was adjourned for 12 months. At the same court on 16 September 2009, you were placed on a suspended gaol sentence for the offence of fail to give name and address. Your licence was cancelled and you were disqualified from driving for four years. You were fined $1,200 for the offence of careless driving. As I understand it, this appearance relates to an incident on 11 July 2007 when you were driving a vehicle when it collided with, and killed, a pedestrian. I will say a little more about this incident later in my remarks.
8 At Broadmeadows on 8 June 2012 you were convicted and fined for the offence of drive whilst disqualified. A related charge of use unregistered vehicle was adjourned for 12 months with conditions that you continue to attend Moreland Hall for alcohol and drug counselling and continue to make positive changes regarding substance abuse.
9 In addition, between September 2009 and January 2015, there were many appearances in various Magistrates’ Courts for dishonesty offences and violence offences. Some of those appearances were in the Magistrates’ Koori Court. On a number of occasions you were released on community corrections orders with conditions that were aimed at addressing your drug and alcohol problems and your mental health issues. On two occasions you were given the opportunity to participate in the Office of Corrections program at Wulgunggo Ngalu. You found it very difficult to engage in, and complete, these programs.
10 Given this history, specific deterrence and protection of the community are relevant sentencing principles.
11 I now move to your personal circumstances.
12 You are a 31 year old man. You identify with your Aboriginal heritage. Your biological maternal grandmother and grandfather come from Kempsey and Box Ridge in New South Wales.
13 Your mother (Moira Rayner) was adopted by a non–Aboriginal family (the McDevitt’s) who ensured your mother was connected to a Melbourne Koori community through the late Aunt Molly Dyer.
14 You were born in Melbourne. Your father left the family when you were very young and you have no memory of him. Your mother then re partnered with Mr Rayner and you have two step-sisters and one step-brother.
15 In a report from July 2013, Dr Lindsay Vowells, clinical neuropsychologist, says this about your childhood and youth. “He was born in Melbourne and grew up in Fitzroy attending the primary school there. He considers that his education in the primary school went well although he was somewhat ostracised because of his very dark skin. The family then moved to Glenroy and he attended Strathmore Secondary College which was a lonely and unhappy time for him as there were few students of non-European background and hence he had no friends, was not included easily in activities such as sport, and so his behaviour started to deteriorate and he was unable to keep up with the academic work.”
16 A subsequent report from Mr Jackson, neuropsychologist, confirmed the difficulties you had at Strathmore Secondary College, as did the comments made by your grandfather during the sentencing conversation. You left that school at the end of Year 8 and resumed your education at Northland Secondary College. You completed Year 11 at that school. You have worked variously as a fencer, kitchen hand and labourer. You did commence an apprenticeship as a chef but did not complete it.
17 When you went into custody on 26 July 2015 you were on the Newstart Allowance and you had been out of work for a significant period of time. You have had a long-standing problem with alcohol and drug abuse.
18 You have been diagnosed by Mr Jackson as suffering from Post-Traumatic Stress Disorder and severe depression. These conditions pre-date your current offending. Indeed, Mr Jackson opines that these conditions have existed since the incident in 2007 when a vehicle you were driving collided with, and killed, a pedestrian. Mr Jackson says this in his report: "McDevitt stated that he never really got over this incident and he has tried a few times to see a psychologist about it, but it is unclear whether his attempts to see a psychologist were unsuccessful, or whether he did not find therapy helpful. He did not appear to have seen a psychiatrist. It was following this incident that his substance use (alcohol) increased dramatically and it seems quite clear that he was self-medicating his mental health distress.”
19 The interaction between your mental health problems and your substance abuse is confirmed by the following:
20 (1), previous court orders that have had conditions addressing drug and alcohol abuse and assessment and treatment for mental health issues.
21 (2), the report of Dr Lindsay Vowells dated 25 July 2013.
22 (3), the NWMH Inpatient Discharge Summary of 18 August 2014.
23 The discharge summary that I have just referred to addressed risk factors and management as follows, “Alan has an itinerant lifestyle and it is very difficult to organise a long term treatment plan with him. He is also a chronic polysubstance abuser and remains high risk of misadventure with OD, intoxication or drug and alcohol withdrawal. His adherence to treatment is poor according to his GP, however, Alan would like to go back to his GP for follow up. Alan was informed about various services for addiction and dual diagnosis patients.”
24 Mr McDevitt, I am satisfied that you suffer from Post-Traumatic Stress Disorder, severe depression and a level of cognitive impairment and that these conditions are long-standing. It is also likely that your abuse of alcohol and drugs is linked to your mental health issues. Whilst Mr Jackson opines that your mental illness contributed to the offending, he also recognises that it did so in combination with your consumption of alcohol. Over the last eight years or so, this has proved a dangerous combination, and has resulted in numerous court appearances. Efforts to address your mental health and substance abuse problems in a community setting have not been successful.
25 In assessing your culpability I must give appropriate weight to the fact that you have a long history of abusing alcohol and that alcohol provides the trigger for this offending behaviour. On the day in question you had been drinking and causing a disturbance in Glenroy. You decided to get way from the area and you purposefully and opportunistically stole a car to do that. You were affected by alcohol and you were unlicensed. You drove that car at speed and on the wrong side of the road. You had a past experience that must have alerted you to the dangers associated with such behaviour and you proceeded nonetheless. In these circumstances, the fact of your mental illness can only permit a modest reduction in your moral culpability and a modest amelioration of the principles of deterrence.
26 I conclude this aspect of my remarks by acknowledging that your sentence should be appropriately moderated to take account of the 5th and 6th principles of Verdins, namely, that a sentence of imprisonment will be more onerous for you than it would be for someone without your mental conditions and that there is a real risk that prison may exacerbate your mental conditions.
27 On this last point, I note the challenges presented to the authorities by your mental health diagnosis. Mr Jackson opines that your prognosis is guarded and probably poor given the fact that your condition has, apart from your self-medication gone untreated for years and would be considered chronic. Clearly, it is imperative that you receive appropriate treatment whilst in the prison environment. I endorse Mr Jackson’s comments that you receive a psychiatric assessment (if you have not already received one) to assist with your treatment. My associate will provide a copy of all the reports to the prison authorities to assist this process.
28 Mr McDevitt, you have entered an early plea of guilty. This has saved the victims from the trauma of giving evidence and also saved the community the cost and expense associated with a criminal trial. Your plea is indicative of remorse. You will be given credit for all these matters.
29 You consented to having the charges heard in the Koori Court. In doing so you agreed to participate in a process that involves appearing before elders from the Koori community. The process is described as a “sentencing conversation.” I give you credit for your participation in the Koori Court process. Participation in the process is not easy; indeed, it is challenging. This hearing was no exception.
30 To put this in context, you have prior appearances in the Magistrates’ Koori Court and in these circumstances you would have foreseen, or been advised, that the Elders would speak to you directly about your offending and your inability in the past to accept support and change your behaviour. It is to your credit that you consented to the process with the understanding that the hearing would be challenging. Although you are a man who finds it difficult to articulate his feelings, it was apparent from your participation in the process, that you are genuinely sorry for what you have done.
31 Mr McDevitt, your past history, the seriousness of this offending, Mr Jackson’s prognosis and your past difficulties in engaging with support services, make me extremely guarded about your prospects for rehabilitation. If you are able to successfully engage with psychiatric services, and remain drug and alcohol free, your prospects of rehabilitation would be enhanced.
32 In determining the appropriate sentence, I take account of the fact that this will be your first lengthy period of imprisonment.
33 Would you please stand.
34 On the charge of culpable driving you are convicted and sentenced to 7 years and 6 months imprisonment. All licences are cancelled and you are disqualified from driving for a period of 6 years.
35 On the charge of car theft, you are convicted and sentenced to 15 months imprisonment.
36 On the charge of unlicensed driving, you are convicted and sentenced to one months imprisonment.
37 I order 3 months of the sentence for the car theft be served cumulatively on the sentence for culpable driving.
38 This makes a total effective sentence of 7 years and 9 months. I fix a minimum term before you will be eligible for release on parole of 5 years and 3 months.
39 I make a declaration that you have served 473 days by way of pre-sentence detention.
40 Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a total effective sentence of 10 and a half years with a minimum term of 8 years imprisonment. Please be seated.
41 Is there anything else, gentlemen?
42 MR ROBINSON: No, Your Honour.
43 MR STANTON: No, Your Honour.
44 HIS HONOUR: Yes, thank you, you can remove the prisoner.
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