Director of Public Prosecutions v McDonald

[2016] VCC 960

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01712

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEIGH MCDONALD

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 July 2016
CASE MAY BE CITED AS:	DPP v McDonald
MEDIUM NEUTRAL CITATION:	[2016] VCC 960

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	Ms D. Guesdon
For the Accused	Ms M. Brown

Pages 1 - 14

 

 

HIS HONOUR: 

1Leigh McDonald, you can remain seated for the time being.  You have pleaded guilty to an indictment charging you with two offences of theft, one offence of aggravated burglary, one of possessing a drug of dependence, three offences of possessing an unregistered general category handgun, and one offence of handling stolen goods.  You have also pleaded guilty to a number of related summary offences, which are related to the offences on the indictment.  Charges 1 to 6 inclusive are possession of a prohibited weapon, namely knuckledusters, possession of ammunition without a licence, driving whilst disqualified, committing an indictable offence whilst on bail, driving whilst exceeding the prescribed quantity of drugs, and in relation to Charges 7 and 8 on the indictment, possession of ammunition without a licence, possessing a prohibited weapon, possessing prohibited weapon without approval, fraudulently altering a vehicle licence plate, unlicensed driving, committing an indictable offence whilst on bail, and contravening a condition of bail. 

2You have asked me to take into account all of those summary offences in passing sentence upon you.  You have also admitted a number of prior court appearances and convictions, including a number of motor vehicle offences.

3The maximum term of imprisonment for theft is ten years, for handling stolen goods 15 years, for aggravated burglary 25 years, possessing a drug of dependence (cannabis for personal use) five penalty units, being a non-prohibited person in possession of an unregistered general category handgun seven years' imprisonment, possessing cartridge ammunition without a licence 40 penalty units, possessing a prohibited weapon two years' imprisonment, driving whilst disqualified four months' imprisonment for first offence and two years' imprisonment for a subsequent offence, driving whilst exceeding the prescribed concentration of drug 12 penalty units for a first offence, driving whilst unlicensed three months' imprisonment, committing an indictable offence whilst on bail, three months' imprisonment, contravention of a condition of bail three months' imprisonment, and for altering a numberplate two months' imprisonment.

4The prosecution tendered and relied upon a summary of prosecution opening, which is Exhibit A.  I incorporate that document into these reasons for sentence in its entirety, I will not read it again.  It sets out the circumstances in which you attended the home of your victim in relation to Charges 2 and 3 on the indictment during the afternoon of 17 June 2014.  You were attending Port Phillip Prison on that day to deposit some money in a prisoner's account, and because you were in possession of a package containing drugs and cash, you left that concealed close to the home of your victim,
Matthew Kaye.  You were with a young lady. You apparently returned after visiting the prison to find the package that you had left concealed missing, and apparently believing that somebody from Mr Kaye's home had taken the package, you attended his residence, spoke to him about it, and told him you would "be back to see him". 

5Later that day at about 7.45, indeed you did return.  You had a motorbike with you, and you were in the company of another unknown male.  You were in possession of a silver sawn-off shotgun. You told Mr Kaye words to the effect "I told you I'd be back, where's my shit?".  You then entered the home of Mr Kaye with your co-offender, intending to assault him.  You struck him to the face and shoulders with the butt of the shotgun.  He was pushed back onto the couch.  You put on a pair of knuckledusters and struck him several times to the face.  Your co-offender stood nearby wearing what is known as a "scream mask" and hoodie. He too was holding a double-barrelled sawn-off shotgun. 

6You showed Mr Kaye a belt contained ammunition which was strapped around your waist, and said words to the effect that "You weren't fucking around".  You caused Mr Kaye's bedroom to be searched, and you continued to strike Mr Kaye with the butt of the shotgun, hitting him to the back of the head and shoulders, causing him to fall onto a chair.  You demanded the keys to his Holden Commodore motor vehicle, and took, in addition to the keys, a small bag of cannabis and a spare key to Mr Kaye's bedroom drawer.

7You ordered him to hand over his mobile phone and driver's licence, and you again struck him with the butt of the shotgun to the upper body and said words to the effect "You'd better have your stuff back by tomorrow".  You and your co-offender then left the premises.  You drove away on your motorbike, and your co-offender drove Mr Kaye's Holden Commodore. 

8You, along with the Holden Commodore, you riding the motorbike, were seen at the 7/11 store at Kororoit Creek Road and Millers Road Altona at about 8.46 pm that day.  Ms White, the young lady who had originally accompanied you to Port Phillip Prison, was seen driving her Lancer motor vehicle behind your motorbike and the Holden Commodore.  The stolen Holden Commodore was left at the 7/11 car park, and recovered by police on 24 June.

9Mr Kaye eventually contacted the police, they attended and he was examined at the medical centre in Truganina, found to have sustained multiple lacerations to the inside of his mouth, a broken tooth and several loose teeth, swelling to his face and left shoulder pain. 

10At about 2 am the following morning, you were involved in a single-vehicle accident whilst riding your motorbike at the intersection of Kororoit Creek Road and Grieve Parade in Altona.  The paramedics were called and you were found with a sawn-off shotgun, apparently fitting the description of that which you had used earlier in the day, concealed under your jacket, and. Although the shotgun was not loaded, you were also found with two gun belts concealed under your clothing, containing a total of 38 shotgun shells.

11In addition, you were in possession of a bag around your shoulders. That was found to contain another sawn-off shotgun, along with a set of knuckledusters.  Your possession of those various items are reflected in the summary charges that I have already referred to. 

12Also in your possession was some cannabis, likewise that is reflected in Charge 4 on the indictment.  The motorbike that you were riding had been stolen, and that is reflected in Charge 1 on the indictment.  You were transported to the Royal Melbourne Hospital, blood was taken and analysed, and contained 0.5 milligrams per litre of methylamphetamine which, as your counsel conceded on the last occasion, is a substantial level of concentration of that particular drug.

13At the time of the driving, you were disqualified from holding a licence.  Those offences are reflected in the related summary offences to which I have already referred.  You were arrested at the scene, taken to hospital, and you were not interviewed because of your condition.  You were remanded in custody until you were released on bail on 19 November 2014.

14In respect to those offences in particular I regard the aggravated burglary as a serious example of the offence.  You went with a disguised co-offender, both of you armed with shotguns, you also with a knuckleduster, intent on assaulting Mr Kaye. Indeed you did assault
Mr Kaye, and you subjected him to gratuitous violence which caused him injury.  You are not specifically charged with any offence of assault, but the fact that you did engage in that conduct towards Mr Kaye, pursuant to the intent with which you had entered the premises, aggravates your offending conduct.

15Offences which involve the use of firearms, whether they're loaded or not, are extremely frightening for the occupants of any home. Although there is no victim impact statement in this case, it is to be presumed that your conduct towards Mr Kaye would have had a significant effect on him both physically and psychologically. 

16The offences, the subject of Charges 7 and 8 on the indictment, and the related summary offences occurred in December 2015.  Between the 20th and
22 December, a burglary occurred at a property in Kilmore, and a 12-gauge under and over shotgun was removed from the gun safe at that property.  On the 29th and 30 December, police attended a unit at 31 Eddie Street in St Albans looking for a male offender, and on the 30th, entered the premises and found you within the property.  You had apparently driven to the property in your father's Holden Commodore vehicle and spent the night on the couch.  You were not licenced to drive a motor vehicle at the time.

17Inside the premises the police observed a blue and green sports bag beside you.  When they examined it, they found it contained the shotgun that had been stolen a few days earlier from Kilmore, but by then the shotgun had been altered by sawing off the other end of the shotgun to convert it, essentially, into a handgun.  That offence is the subject of Charge 7 on the indictment.

18Clearly the gun had been stolen, and you have pleaded guilty to handling that shotgun, knowing or believing that it was stolen.  That is Charge 8 on the indictment.

19Also in the same bag as the shotgun were located further shotgun cartridges, which are the subject of a further related summary charge, a set of steel knuckledusters, the subject of related Summary Charge 3, an electrical Taser and three interchangeable Taser devices, the subject of related Summary Charge 4, and the numberplates that had been fraudulently altered, the subject of a further related summary charge.

20You were on bail in relation to the offences, the subject of Charges 1 to 6 on the indictment, and related summary offences, and you were therefore committing an indictable offence whilst on bail at that time, and you contravened a bail condition by not abiding by your curfew.  You were interviewed about those matters at the Sunshine police station, you made some partial admissions, but made some false denials as well.

21You have been in custody now since 18 February 2016, and by my calculations you have totalled 347 days presentence detention, not including today. 

22Turning to matters personal to you, your counsel provided me with an outline of plea submissions on your behalf, which speak of some of your background, and your employment history.  Ultimately your counsel invited me to consider a term of imprisonment in conjunction with a lengthy community correction order upon release from your term of imprisonment.  I was also provided with a report from psychologist Carla Lechner dated 22 June 2016, which fills out some of the details of your background, your education history, and your employment history, and also your history of drug abuse, which has led her to diagnose stimulant use disorder with underlying symptoms of depression and grief associated with a number of significant personal losses. 

23Ms Lechner points out that from an early age you learnt to "self-medicate", with the misuse of illicit drugs, and that your use of drugs has, according to her opinion, "inadvertently aggravated your underlying emotional dysregulation".  She points out that these offences apparently occurred in the context of a relapse to drug abuse.  She does underscore the fact that you have expressed regret and shame for your actions, and that sentiment has been expressed by you in a letter addressed to me dated 27 June of this year. I accept that now, after time to reflect and time to get well away from the effects of drug abuse upon you, that that is your state of mind, that you do have, and have shown, genuine remorse.  That remorse is also reflected in your pleas of guilty to these offences, and although at least some of the indications that you would plead were late in the day, I nevertheless give you substantial credit for your pleas of guilty for having saved the community the cost of the trial, the witnesses the inconvenience and difficulty of giving evidence in a trial, and for the fact that your pleas of guilty indicate an acknowledgement, or willingness to acknowledge your criminal responsibility for these offences, and, as I say, support the proposition that you are now remorseful for your conduct.

24There is no doubt that your offending is typical of a person who has become a significant user of methylamphetamine. I have no doubt at all that does provide the context for your offending conduct, not just in 2014, but in late 2015 as well.  It is notoriously difficult to shake the habit when you have fallen prey to it.  You have no doubt found that, and consequently have relapsed into heavy use of the drug, and I have no doubt that had it not been for your drug abuse over the years that you would have continued to live an honest and productive life. 

25Your background shows, and your presence of family here today, and also the presence of Ms Liverton show that you have a good deal of support behind you, and your work record would suggest that you have the capacity to get back into a steady work routine if you can shake the habit.  And that is not going to be easy. Being off it for a period whilst you have been in custody is only party of the journey, is it not?  You have got a long way to go, both physically and more importantly, emotionally, in order to insulate yourself from the temptations and risks of relapse once you have completed your sentence.  I do not think you need any kind of lecture from me, you have been through the mental process of evaluating your current circumstances, and determining that you wish to put all this behind you and get yourself back on track, and that is reflected in your letter to me.  And I accept that those sentiments are genuine, and I accept that there is much good in you, and capacity to put all this behind you and lead a decent, hardworking life. 

26You have family responsibilities of your own, to a 12-year-old, and it will be hard for you while serving your sentence to know that you have deprived him of a father, an effective father, during that period when you will be in custody.  All of those are matters that I take into account in assessing the appropriate sentence.

27One of the matters that I do have to consider is, what are your prospects of rehabilitation?  If, and it probably still is a big "if", you can beat the ice habit in particular, the drug abuse habit generally, then I would rate your chances as good.  But that view has to be guarded at this stage, because it has not been put to the test.  You did have a very significant warning shot, so to speak, as a result of your arrest for the offences, the subject of the Charges 1 to 6 on the indictment, yet you engaged in the conduct associated with Charges 7 and 8 on the indictment some 18 months later.

28It is not suggested by your counsel that the principles often referred to as the Verdins principles apply in your case.  Your mental health issues are documented in the report of Ms Lechner, and I take them into account. But it does not seem to me that any of the matters to which she refers reduces your moral culpability in any way, and it does not seem to me that any of the principles referred to as the Verdins principles apply in this case.

29You have, as your counsel points out, limited prior convictions, not untypical of somebody associated with illicit use of drugs, although you have a very bad driving record, and although back in 2005 you have a conviction for possessing a controlled weapon without excuse.  You are still relatively young, and I am conscious of the need to avoid imposing a sentence which is crushing upon you, and to observe what is known as the "totality principle", which is ensuring that the ultimate sentence that I impose with considerable concurrency between the sentences for individual offences produces a sentence which is just in all the circumstances, but is no more than is necessary to achieve the objects of sentencing.

30Doing the best I can to observe those principles, I am now ready to impose sentence upon you, so would you please stand?

31On Charge 1 on the indictment of theft of the Yamaha motorcycle, I convict you and sentence you to imprisonment for a period of four months.

32On Charge 2 of aggravated burglary, I regard that as a serious offence of its kind, and I sentence you to imprisonment for a period of four years and six months.

33On Charge 3 of theft of a motor vehicle and iPhone and driver's licence from Matthew Kaye on 17 June 2014, I convict you and sentence you to imprisonment for a period of four months.

34On Charge 4 of possessing a drug of dependence, namely cannabis, I convict you and discharge you.

35On Charge 5, possessing an unregistered general category handgun, I convict you and sentence you to imprisonment for a period of 12 months, that is the gun that you had in your possession at the time of the aggravated burglary.

36In relation to Charge 6 of possessing an unregistered general category handgun, which was the other gun that you were found in possession of at the time that you had your accident, I convict you and sentence you to imprisonment for a period of 12 months.

37On Charge 7 on the indictment, of possessing an unregistered general category handgun, being the sawn-off shotgun that was found in your possession on 30 December 2015, I convict you and sentence you to imprisonment for a period of 15 months.

38On Charge 8 of dishonestly handling stolen goods, namely that sawn-off shotgun, I convict you and sentence you to imprisonment for a period of 15 months. 

39In relation to the summary charges that are related to Charges 1 to 6 on the indictment, that is the charges under the court reference number ending 7-1-2.  On Charge 9 of possessing a prohibited weapon, namely the knuckledusters, which I note are the knuckledusters upon which it seems the blood of your victim was found, I convict you and sentence you to imprisonment for a period of two months. 

40On Charge 10 of possessing cartridge ammunition or ammunition, being the 38 rounds of shotgun ammunition found in your possession on 18 June 2014, I convict you and sentence you to a fine of $1,500.

41On Charge 12 of driving the motorcycle on a highway whilst disqualified, I convict you and sentence you to imprisonment for a period of one month.

42On Charge 13 of committing an indictable offence, namely aggravated burglary whilst on bail, I convict you and sentence you to imprisonment for a period of one month.

43And on Charge 16 of driving a vehicle whilst a prescribed concentration of drugs was present in your blood, I convict you and fine you $300.

44In relation to the summary charges against court reference ending 9-8-7, associated with the offending the subject of Charges 7 and 8 on the indictment, on Charge 2 of possession cartridge ammunition, I convict you and fine you $1,200.

45On Charge 3 of possessing a prohibited weapon, namely knuckledusters, I convict you and sentence you to imprisonment for a period of three months.

46On Charge 4 of possessing a prohibited weapon, namely a Taser, I convict you and sentence you to imprisonment for a period of three months.

47On Charge 5 of fraudulently altering a numberplate, I convict you and sentence you to imprisonment for a period of 14 days. 

48On Charge 6 of driving without a licence, I convict you and sentence you to imprisonment for a period of 14 days.

49On Charge 9 of committing an indictable offence whilst on bail, I convict you and sentence you to imprisonment for a period of one month.

50And on Charge 10 of contravening a condition of bail, I convict you and sentence you to imprisonment for a period of one month.

51In respect of the sentences of imprisonment, I now make orders in relation to cumulation of sentence.  The sentence of four years and six months on Charge 2 on the indictment is to be regarded as the base sentence. I order that one month on Charge 1 on the indictment, one month of the sentence on Charge 3 on the indictment, two months of the sentence on Charge 5 on the indictment, one month of the sentence on Charge 6 on the indictment, four months of the sentence on Charge 7 on the indictment, and three months of the sentence on Charge 8 on the indictment, along with one month of the sentence on Summary Charge 9 of being armed with a prohibited weapon on 17 June 2014, namely knuckledusters, one month of the sentence in respect of Summary Charge 3 arising from the summary offences connected with Charges 7 and 8 on the indictment, and one month of Summary Charge 4 associated with those same charges, be served cumulatively upon one another, and upon the sentence of four years and six months on Charge 2 on the indictment. 

52That makes a total effective sentence, according to my calculations, of five years and nine months' imprisonment I order that you serve a period of three years and nine months before you become eligible for parole.

53But for your pleas of guilty, I would have sentenced you to a total effective sentence of seven years and eight months' imprisonment with a non-parole period of five years.

54In respect of the fines, they total $3,000.  I order a stay of 12 months on the payment of those fines, and in respect of Summary Charge 6, unlicensed driving, I order that you be disqualified for a period of six months from driving or holding a driver's licence, and in respect of Charge 12, I order that you be disqualified from driving or holding a licence for a period of six months.  On Summary Charge 16, that being the offence of driving with ice in your blood, I order that you be disqualified for a period of 12 months.  All of those disqualifications will run from today's date, making a total effective period of disqualification of 12 months.

55I declare 347 days presentence detention as time to be reckoned as served on the sentences that I have imposed, and deducted administratively from that sentence.  I order that fact be noted in the records of the court.

56I make the orders for forfeiture and disposal of property in accordance with the drafts which I have been provided, and I order that you provide a forensic sample by scraping from the inside of your mouth.  During your period in custody, you will be approached by an authorised officer who will request you to provide the scraping from the inside of your mouth.  If you do that, that is the end of the matter.  If you fail or refuse to comply with the request when it is made, the officer will be authorised to take blood and may use reasonable force to do so.  I am quite sure that you will not put them to that trouble.

57Are there any other orders I need make?

58MS GUESDON:  Your Honour, just two matters.  Regarding presentence detention.

59HIS HONOUR:  Yes.

60MS GUESDON:  The accused was also in custody between 30 December all the way through.  His bail was revoked on 18 February in relation to the first matters, so that gives a total presentence detention of 446 days.

61HIS HONOUR:  Four-hundred and forty-six days, is that right?

62MS GUESDON:  Yes, yes Your Honour.

63HIS HONOUR:  Yes, all right.  Because the summary of prosecution opening stated that ‑ ‑ ‑

64MS GUESDON:  I think I had a total in the next paragraph down, Your Honour.

65HIS HONOUR:  Sorry?  As at - paragraph 42, "as at PSD referrable to all charges together is 338 days, exclusive of the plea date 29 June 2016", and in Ms Guard-Wilson's submissions, that figure was repeated.

66MS GUESDON:  Yes, sorry Your Honour, I have somehow added on an extra 100 when I was adding it up.  So it should be 347 - yes, that is right, sorry Your Honour.

67HIS HONOUR:  Three-hundred and forty-seven days, do you agree?

68MS BROWN:  Yes, Your Honour, that accords with Ms Guard-Wilson's submissions.

69HIS HONOUR:  Yes, all right, well I ‑ ‑ ‑

70MS GUESDON:  And just one further matter, Your Honour, which I neglected to put on the original ‑ ‑ ‑

71HIS HONOUR:  Take a seat.

72MS GUESDON:  In relation to theft of a motor vehicle there is - on a conviction, there is a mandatory disqualification of any length the court sees fit.

73HIS HONOUR:  I see, all right, yes.

74MS GUESDON:  So I certainly do not seek for it to be any longer than ‑ ‑ ‑

75HIS HONOUR:  Yes.  So there are two thefts of motor vehicles that I have to take into account there, that is Charge 1 and Charge 3 on the indictment.

76MS GUESDON:  Yes, Your Honour.

77HIS HONOUR:  Well I will impose 12 months on each, and that will commence today.  So the total effective disqualification is 12 months from today's date.

78MS BROWN:  As Your Honour pleases.

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