Director of Public Prosecutions v McDonald

[2018] VCC 1147

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01832

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRODY McDONALD

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 May 2018
DATE OF JUDGMENT:	9 July 2018
CASE MAY BE CITED AS:	DPP v McDonald
MEDIUM NEUTRAL CITATION:	[2018] VCC 1147

REASONS FOR SENTENCE
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Subject:  Assault, Criminal Damage, False Imprisonment.

Sentence:  4 and ½ years imprisonment with a nonparole period of 3 years and 2 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C.J. Duckett
For the Accused	Dr M. Fitzgerald

1HIS HONOUR:  Brody McDonald.  You have pleaded guilty to three charges of assault for which the maximum penalty for each offence is five (5) years' imprisonment, one charge of criminal damage for which the maximum penalty is ten (10) years' imprisonment; two charges of false imprisonment, for which the maximum penalty is also ten (10) years' imprisonment and one charge of making a threat to inflict a serious injury, for which the maximum penalty is five (5) years' imprisonment.

2At the time that you pleaded guilty to these charges on indictment, you also pleaded guilty to two summary charges and agreed to have those dealt with by me in this court.  Those charges were possessing a controlled weapon without lawful excuse for which the maximum penalty is 240 penalty units or imprisonment for two (2) years, and breaching a condition of bail for which the maximum penalty is 30 penalty units or three (3) months' imprisonment.

3When you pleaded guilty to the charges, you also admitted a number of prior convictions from 11 previous court appearances between March 2002 and July 2013.  I shall come back to these later.

4Your offending occurred in the context of your tumultuous relationship with the complainant, in three separate episodes of offending between March 2016 and November 2016.

5The circumstances of your offending are explained in a summary of prosecution opening in writing which was admitted into evidence as Exhibit A on the plea.  That document was read in open court by the learned prosecutor, Ms Duckett.  Your counsel, Mr Fitzgerald, conceded that the summary was accurate and forms a proper basis upon which I can proceed to pass sentence upon you.  It is therefore not necessary that I here repeat that which is set out in the summary except in an abbreviated way.  These sentencing remarks need be read, however, in conjunction with what is set out in the prosecution opening.

6In addition, the prosecution tendered a number of photographs depicting the damage to the complainant's car, Exhibit B, and the injuries you inflicted upon the complainant in the third episode of offending, Exhibit C.

7You met the complainant and formed a relationship with her in December 2015.  At that time the complainant, with her two daughters and other family members, lived with her mother.  Your relationship with the complainant was drug reliant and tumultuous, resulting in fighting and arguing between the two of you.

8On the 20th of March 2016, the complainant went to her mother's residence following an argument with you.  She later that day attended the Carrum Downs Police Station and spoke with the police, but she did not lodge a formal complaint about your conduct.  After a short time away, the complainant resumed her relationship with you.

9On an occasion between the 1st of March 2016 and the 5th of July 2016, you and the complainant were together in the complainant's car, which was parked outside the Seaford Hotel.  You punched her in the face and on the back of her head.  You grabbed at the complainant's phone and threw it on the ground.

10Fearing your assault on the complainant, you used a knife to damage the dashboard of the complainant's vehicle, which had belonged to her grandfather and had considerable sentimental value to the complainant.  You did that to taunt the complainant.  You also used a jet lighter to burn the dashboard of the vehicle, and when the complainant put her arm in the way of the flame to try to stop you, you took no evasive action and the flame burnt the complainant's arm.  Charge 1, Assault; and Charge 2, Criminal Damage.

11Police came to the scene, but the complainant again did not lodge a complaint against you.  Later that evening, you smashed the windscreen of the complainant's car after she asked you to return a Samsung tablet.  This was the end of the first episode of offending.

12Whilst not at the highest level for this kind of offending, the offending in Charges 1 and 2, occurring as it did in a relationship context, and involving violence by you against a woman, is clearly serious.

13Your assault on the complainant was violent and particularly nasty, using as you did, in a part of it, a device to burn the complainant's arm.  You clearly have no respect towards her as a woman in a relationship with you at all.

14Between the 5th of July 2016 and the 17th of August 2016, the complainant was in custody, and during that time, you sent many abusive and offensive text messages to her family.  When released, the complainant would not return to her mother's home because she was in fear of you.  She began to lead a couch surfing existence.

15On the 3rd of November 2016, the complainant awoke to find many missed phone calls and texts from you, indicating that you were in a car outside the premises where she was staying at that time.  You refused to leave.

16Eventually, the complainant went to speak with you, but you refused to speak with her through the window, telling her to get in the car.  When she did so, you became angry and started yelling and screaming at her.  You scared the complainant, who started to remove herself from the car.  When a concerned friend approached the vehicle, you accelerated the vehicle away, whilst at the same time holding the complainant in the front passenger seat, and you would not let her out.  Charge 4; False Imprisonment.

17You then grabbed the complainant and reached into her brassiere to grab her phone, which you threw onto the floor of the car.  The complainant tried to reassure you by telling you that she loved you, and not to do this, but you did not calm down.  Instead, you continued to drive through the backstreets at very fast speeds.  As you did so, you grabbed the complainant by the hair and pulled it.  The complainant was crying and begging you to let her out of the car.  You eventually stopped the car and when the complainant reached down to retrieve her phone, you kicked her to her back until she was pushed out of the vehicle and onto the pavement.  Charge 3; Assault.  The complainant ran to a nearby property and you drove away.  This was a second episode of offending.

18This was clearly a terrifying experience for the complainant, who made it clear in her victim impact statement, to which I will soon refer, that she loved you and you treated her in an appalling way.  You were completely in control, because she was in your car, and you would not let her leave.  You drove the car at fast speeds, putting the complainant in fear, and you abused the complainant by choosing to kick her physically out of the car.  You behaved like a thug, knowing that the complainant would not and could not fight you back.

19After these events, the complainant did make a statement to the police, who obtained an intervention order against you.  On the 14th of November, you were arrested and charged and bailed.  You refused to comment when interviewed.  It was a condition of your bail that you not commit family violence.

20There followed contact between you and the complainant over the next few weeks, during which you apologised and you told the complainant that you wanted to work things out.

21Regrettably, the complainant took you at your word.  She believed you.  This was the lead up that resulted in the third episode of offending.

22On the 23rd of November, the complainant met with you so that she could collect some belongings that she had previously left at your mother's house.  The complainant agreed to meet with you at McDonald's, a public place.  When the complainant got into the car to speak with you, you again drove off at high speed.  The complainant asked you to stop, but you ignored her request.  Charge 6; False Imprisonment.  Whilst driving, you pulled out a knife with a ten centimetre blade and you held it up, telling the complainant she was going to answer your questions.  You started asking her about being unfaithful to you and you told her that you were going to "cut her".  Make threat to inflict serious injury (Charge 7) and summary charge of possession of a weapon.

23You told the complainant that "they were going to fuck one last time" and you turned off the Peninsula Freeway and drove towards Red Hill on the Mornington Peninsula.  The complainant tried to get out of the car, but you drove faster.  You kept on trying to locate her mobile phone.  The complainant, by this stage, was scared of you once again, no doubt having by now appreciated the level of violence that you were capable of.

24As you drove towards Arthur's Seat, you became even more angry.  You pulled hair from the complainant's head.  You called her names as you punched her twice, and flick punched her to the nose.  The complainant was screaming and crying for you to let her out of the car, but you kept on pulling her hair and telling her to "shut up".  You eventually stopped and told the complainant that you were leaving her there.  You drove away, accelerating, doing a wheelie before returning to continue arguing with the complainant.

25You drove away, but did not leave the immediate area.  You continued to behave erratically, and in a Jekyll and Hyde way towards the complainant.

26The complainant ran around calling for help.  You eventually got out of the car and grabbed hold of the complainant in a headlock and you dragged her to the car whilst bending her fingers backwards.  You threw her into the driver's seat.  Charge 5; Summary Assault and also Summary Charge; Breach of Condition of Bail.

27You then ordered the complainant to drive the car and she drove to the toilets at Arthur's Seat.  The complainant then told you she needed to use the toilet, and whilst in there, she texted a friend, asking her to call the police.  Eventually, the complainant went into the restaurant at Arthur's Seat, whilst you continued to drive around the car park outside, intimidating the complainant.  The complainant told a person in the restaurant she needed help, and the door was locked and the police called.  When you realised that the police had been called, you texted the complainant, calling her "a cop lover", and you threatened her, telling her, "she was done".  You were later taken into custody from your home.  Charge 6; False Imprisonment.

28A later search of your car located a knife.  Photographs were taken of injuries suffered by the complainant, which went into evidence.  She had a lump on the right temple.  There was a clump of her hair that had been pulled out.  She suffered injuries and pain to the back of her shoulders, hips, fingers, and her face was swollen and hurt.  The complainant declined hospital treatment, but was treated by ambulance paramedics at Arthur's Seat.

29Your behaviour towards the complainant in each episode of offending is a very serious example of relationship violence directed towards a vulnerable young woman.  Over a period of eight months, you treated her appalling.  Your behaviour in the last episode, on the 23rd of November 2016, was disgraceful.

30You obviously planned what you were going to do.  You knew that the complainant loved you, and that by apologising, you could dupe her into meeting with you.  When she did, you subjected her to a level of violence and fear that no woman should have to tolerate.  You took the complainant away against her will, confining her to your car, which you drove at high speed to instil fear, and preventing her escape, and you violently assaulted her and you threatened her with injury.

31All of this occurred after you had been bailed on the 14th of November, so that you knew that you had been charged and you knew that it was a condition of your bail that you were not to commit family violence.  Apart from your pleas of guilty, you have shown no remorse.

32I admitted into evidence a victim impact statement from the complainant, Exhibit D, and victim impact statements from her mother, stepmother and sister, Exhibit E.

33The complainant read her victim impact statement to the court via video link in a very brave way.  In it, she details how your offending has affected her life, and how she still lives in fear of you.  What she has set out is a story of which the courts are only too familiar, resulting as it does from this kind of offending.  When men like you treat women as you do, the community expects that the courts, by the sentences imposed, will try, so far as possible to deter others from offending, and will, so far as possible, protect the community.  I note that in the victim impact statement, the complainant reveals that she was pregnant at the time of your offending.

34You were charged with the offending in what I have described as the first and second episodes of offending on the 14th of November 2016.  You were released on bail to appear at the Frankston Magistrates' Court on the 21st of November 2016.  You failed to appear on that day.  You then committed the offences in the third episode of offending on the 23rd of November 2016, and whilst on bail.  You were arrested and remanded in custody on that day, and have remained in custody since.

35On the 8th of December 2016, the charges were transferred from the summary list.  There was a filing hearing on the 14th of December 2016, and a committal mention on the 10th of March 2017.

36On the 13th of April 2017, the matters were mentioned in the Melbourne Magistrates' Court.  You were unrepresented and applied for all the charges to be dealt with summarily.  The Magistrate apparently advised you that if you were unrepresented at the next mention date, the charges would proceed on the basis of a straight, hand up brief.  There were other mentions before a two-day contested committal hearing on the 7th and 8th of September 2017.  In my judgment, it was entirely appropriate that these charges be dealt with in this court, and not summarily.  Taken together, your level of offending was too serious to have been dealt with in the Magistrates' Court.  You committed a number of offences.  In my view, there is a need for some appropriate accumulation in the sentences between the three episodes, and that puts these charges in the jurisdiction of this court to be dealt with.

37A trial of all charges on Indictment C171120 commenced before me on the 4th of April this year.  That indictment embraced all of this offending, but contained more charges and more serious charges.  You pleaded not guilty to those charges in short form, and there was a Basha hearing in which your counsel cross-examined the complainant, occupying some 66 pages of transcript.

38There were then discussions with the prosecution which resulted in Indictment C11711206.1 being filed over, and you immediately pleaded guilty to those charges.  That is to your credit.  By your pleas of guilty, you've saved the time and cost of a trial, and you've thus facilitated the course of justice.  For that, you are entitled to a reduction in sentence, and this will be reflected in the sentence that I will shortly pass.

39Whilst you have not pleaded guilty at an early stage of the proceedings, I nevertheless give you credit for having pleaded guilty to the charges on this indictment, without the need for a trial, and without the need for the complainant to again have to give evidence against you.

40Further, I treat your pleas of guilty as evidence of some regret on your part for this offending, and acceptance of responsibility for your actions, although my overall impression of you is that you are not remorseful at all.  I have watched you in the court whilst the complainant was reading her victim impact statement via video link.  You repeatedly laughed and shook your head.  You gave me the distinct impression that you continued to fail to understand the seriousness of what you had done to the complainant.  I have not seen any evidence of genuine remorse on your part for this offending, only regret for the fact you have been charged and are again before the court.

41I turn to some matters related to your background and personal circumstances.  Your counsel, Mr Fitzgerald, filed a helpful outline of submissions, which I marked as Exhibit A on the plea.  In that document, Mr Fitzgerald appropriately conceded that your offending is serious, and that the sentencing principles of general deterrence and denunciation are important in the sentencing of you.  He also conceded that because of your prior convictions, the sentencing principle of specific deterrence has a role to play in framing your sentence.

42Mr Fitzgerald conceded there are a number of aggravating features of your offending, which escalated over the period of offending.  He submitted your offending was spontaneous and lacked planning, which I accept.  However, your actions seem to me to the typical of someone given to sudden and violent outbursts of anger.  He submitted that neither charge of false imprisonment was as prolonged as may be contrasted with other cases.  That much is true, but each charge of false imprisonment was associated with violence.  The circumstances of Charge 6 show that you imprisoned the complainant for around an hour and a half.  Whilst that is a relatively short period when compared to some other cases, for the complainant, it must have seemed an eternity.

43You were born on the 24th of April 1984.  You are now 34 years of age.  You were 32 at the time of this offending.  You have prior convictions involving dishonesty, drugs, violence, weapons, arson, and driving.  Mr Fitzgerald submitted that you have no prior convictions for offending against your partner.  That is true, but you do have convictions relating to offending against women, namely your mother.  You told Dr Sullivan, when you saw him in 2011, that you were at that time serving a sentence of 40 months' imprisonment for offending which involved an altercation with family and your partner about access to your son.  What you told Dr Sullivan relates to a sentence imposed by Judge Gucciardo in this court on the 29th of March 2010, when you pleaded guilty to a charge of arson in circumstances where you set fire to your mother's home after a disagreement with her and your sister relating to access arrangements for your son.  Also, I note that in 2005, you were convicted of intentionally causing injury and making a threat to kill.  On that occasion, you threatened your cousin with a knife.

44I received into evidence a report from Dr Cunningham, a psychologist, dated the 28th of May 2018, Exhibit 2, and a report from psychiatrist, Dr Danny Sullivan, prepared for an earlier court appearance, dated the 20th of March 2011, Exhibit 3.

45Both experts agree you suffer from a Borderline Personality Disorder, with symptoms of impulsivity and emotional instability.  They are of longstanding.  Dr Cunningham thought you are prone to episodes of depression and anxiety, feelings of emptiness and anger, and angry outbursts.  As a child, you were treated for ADHD.  You've also been a polysubstance drug abuser, which has contributed to you exhibiting impaired judgment, disinhibition, and your ability to think clearly.  You need proper treatment of drug abuse.  You are on the methadone program in prison.

46Mr Fitzgerald did not submit that your Borderline Personality Disorder and its symptoms impaired your thinking at the time of your offending, or that your moral culpability ought be reduced on this account.  He did submit that your mental health, and in particular your depressive symptoms, are worsened by imprisonment, and that your imprisonment imposes a greater burden on you compared with other prisoners by reason of your symptoms.  I do not accept this submission, which, in my view, is not made out by the opinion evidence. 

47I was told and accept that you were subjected to physical abuse at the hands of your father, who abused alcohol.  Your parents separated when you were aged 13 and you relocated to Melbourne from Queensland to live with your mother.  Soon after, you were introduced to cannabis and ice through your then peer group.  Soon after this, you left home.

48You have had unstable employment in low-skilled positions, mainly of a labouring kind.  You had a long-term relationship in your early 20s, and you have a son from that relationship.  You have contact with your mother and sister.

49In 2015, you found work as a landscape gardener, and you had enrolled in a TAFE diploma course in building construction and site management, but you could not take up that course because you were charged and have been in custody for this offending.

50You were charged with offending on the 23rd of November 2016 and you have remained in custody since that period, a period of 594 days pre-sentence detention.  I was told, and accept, that you have been isolated in prison due to your protection status and your personality traits.  You receive visits from a Jewish chaplain and you have embraced the Jewish faith.  I received into evidence a reference from Ryan Winston, a volunteer member of the Jewish Chaplaincy Program, as Exhibit 6.  He told me of his meetings with you in prison and how you have reconnected to the Jewish faith, and of your determination to turn your life around upon release.

51I received into evidence letters from your mother, Exhibit 5, who told me, and I accept, that you were struggling in prison and that you do not make friends easily, and have a tendency to keep to yourself, and that you are mistrusting of others.  She had told me that she will continue to support you as best she can when you are released.  I also received into evidence a letter from your sister, Exhibit 4.  She has told me that she also feels that you are struggling in prison and that you have always had an aversion to socialising with more than one or two people.  She, too, has pledged her support of you when released.

52I accept that you have continued family support, despite the fact your mother has been victim of some of your past offending.  This is encouraging, and at least the court knows that you have some support which may assist your possible rehabilitation upon release.  However, I think your prospects for rehabilitation are poor, and I think it likely you will reoffend.  You have been given many opportunities in the past to change your offending behaviours, but you have not.  I agree with Mr Fitzgerald's submission that any prospect that you might have to rehabilitate yourself is contingent upon you receiving treatment for your drug abuse and your mental health problems. 

53In passing sentence, I've taken all of this into account.  Please stand, Mr McDonald.

54On Charge 1; Assault, you are convicted and sentenced to a term of imprisonment of 9 months.

55On Charge 2; Criminal Damage, you are convicted and sentenced to a term of imprisonment of 6 months.

56On Charge 3; Assault, you are convicted and sentenced to a term of imprisonment of 6 months.

57On Charge 4; Unlawful Imprisonment, you are convicted and sentenced to a term of imprisonment of 18 months.

58On Charge 5; Assault, you are convicted and sentenced to a term of imprisonment of 12 months.

59On Charge 6; Unlawful Imprisonment, you are convicted and sentenced to a term of imprisonment of 3 years.

60On Charge 7; Make Threat to Inflict Serious Injury, you are convicted and sentenced to a term of imprisonment of 6 months.

61On the Summary Charge of Possessing a Controlled Weapon, you are convicted and sentenced to a term of imprisonment of 1 month.

62On the Summary Charge of Contravention of a Bail Condition, you are convicted and sentenced to a term of imprisonment of 1 month.

63I direct that 3 months' of the sentence imposed on Charge 1, and 3 months' of the sentence imposed on Charge 2, and 12 months of the sentence imposed on Charge 4, accumulate upon the sentence imposed on Charge 6, and upon each other, making a total effective sentence of 4 and a half years' imprisonment.

64I direct that you serve a minimum term of 3 years and two months before being eligible for release on parole.

65I declare that there has been a pre-sentence detention of 593 under the sentences passed this day, and I direct that 593 days be reckoned as having been already served, be entered into the records of the court and deducted administratively.

66For the purposes of s.6AAA, the Sentencing Act 1991, I state that had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of 7 years' imprisonment, and I would have fixed a non-parole period of 5 years.

67I have been asked to sign disposable orders, which were not opposed, and in those circumstances, I have signed them.