Director of Public Prosecutions v McDonald

[2014] VCC 1292

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-02209

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON MCDONALD

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2014
DATE OF SENTENCE:	8 August 2014
CASE MAY BE CITED AS:	DPP v MCDONALD
MEDIUM NEUTRAL CITATION:	[2014] VCC 1292

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms S Pattison
For the Accused	Mr P Guggenheimer

HIS HONOUR:

1Jason McDonald, you have pleaded guilty to an indictment charging you with a total of 13 offences involving attempted burglary, criminal damage, theft, aggravated burglary, intentionally causing injury, burglary, attempted aggravated burglary. 

2You have also admitted a number of prior convictions and court appearances which go back to 1994, and involve you in a number of serious offences, including offences of dishonesty, although I think during the course of the plea, I noted that it was a criminal history that is of a kind that is often associated with people who have serious substance abuse problems.  You have also pleaded guilty to three summary offences dealing with proceeds of crime, assaulting Mr De-Jong and assaulting Ms Latham. 

3The prosecution tendered and relied upon a summary of opening, which catalogues the events of 27 August, and also of 25 August as they relate to these particular charges. 

4It is clear it seems to me that you were under the influence of a number of different substances, including methamphetamine, Xanax and also alcohol.  Your behaviour was quite disgraceful and involved gratuitous assaults on persons including the unfortunate Mark Tregelis who suffered some quite nasty injuries and a psychological overlay from the assaults that you perpetrated upon him.  This was a period of madness on your part, albeit induced by substance abuse, and it seems also no doubt contributed by your acquired brain injury that is spoken of in the report of Dr Vowels. 

5The prosecution also relied upon victim impact statements.   Needless to say, your conduct in relation to these offences has had and will continue to have, an ongoing effect on your victims.   All of that is relevant to sentencing and I must take those matters into account.

6Your counsel relied upon a number of exhibits.  Principally a report from Mr Cummins, a psychologist dated 16 July this year, and a report from Dr Lindsay Vowels as to your acquired brain injury.  It is clear at least, a contributing factor to your acquired brain injury is your substance abuse over the years.  It also seems that trauma has played its part as well.  But that coupled with the mental impairments that Mr Cummins speaks of, seemed to me are relevant in a number of ways to the exercise of the sentencing discretion.

7What is of particular relevance, is that despite your very bad criminal record, and despite the seriousness of these offences, you have shown every sign of being genuinely remorseful for what you did, and have set about trying to straighten out your life. 

8Obviously, you have had to do that within the confines of your incarceration in the intervening period.   That has provided you both with limitations and also with opportunities, and it seems to me that you have taken those opportunities and have demonstrated a willingness to come to grips with your problems in a way which you perhaps have not been able to achieve in the past.

9It is for that reason that I am at a point of considering imposing a community corrections order.  You really are I think genuinely at a crossroads in your life.  If you do not take this opportunity now, then you I think are in for a very torrid time in the future, because this course that I am proposing to take is taken in the face of an assessment report which suggests that you are not suitable for a community corrections order, based largely upon your failure in the past to take opportunities that have been offered to you, and to complete orders of a similar kind that have been imposed by the courts.

10I think you are at real risk of committing further offences, real risk of breaching the order that I have in mind, but if you are to be given a chance to prove your stated intent of coming to grips with your problem, and maintaining the momentum that you have achieved in the rehabilitative measures that you have taken whilst you have been in custody, then this is that time it seems to me.

11You have been fortunate I think in that you have impressed some people who have been concerned with your recent rehabilitative steps.   There is a report from Liza Cushion of stepping up consortium dated 7 April of this year and it seems that you have impressed her with your efforts at rehabilitation and there are support processes which will be offered to you in the period that you are under this community corrections order.

12I am not going to detail all of the exhibits that I was provided with.  Those exhibits are designed to demonstrate the work that you have done to show that you are genuine in your attempts to sort yourself out.  Also to show the care that you have shown for Taylah.   Hopefully that care will continue and that will help you to focus on the need to comply with a community corrections order.

13You must know, because you have had experience that this is going to be like a suspended sentence hanging over your head, so you are not out of the woods.  If you breach the order, either by failing to stay out of trouble, committing further offences punishable by imprisonment during the term of the order, or by failing to keep your appointments, and failing to comply with the conditions of the order, then you will be back before this court probably before me, and you will leave the court with no choice other than to impose the sentences of imprisonment that would otherwise have been appropriate for this offending conduct.

14Aggravated burglary is a serious offence, there are a number of other offences here which are serious including the assaults and particularly that on Mr Tregelis.  So you must know that there is a substantial term of imprisonment waiting for you if you are in breach of the order.

15I do not think you need me to lecture you any further.  It seems to me that it is consistent with my duty as a Judge to balance the sentencing considerations of punishment, of denunciation.  That is, showing that the court treats offences of this kind seriously.   Having regard to what Parliament have said about the use of community correction orders, even in cases of serious offending conduct, in an appropriate case, it is well recognised that it has the effect similar to a suspended sentence, in that inevitably, the only other punishment that would be appropriate would be a term of imprisonment and therefore it has that added effect of deterring you from committing further offences.

16There is a tension clearly in a case such as this between what the court is required to do in terms of general deterrence, that is seeking to deter others, and imposing an order of this kind, and to the extent that I am may be seen to be imposing a sentence that is unduly lenient.

17It might be seen by a casual observer to be a soft option.  I think that you would know that rehabilitation, particularly when you have been exposed to ice at the level that you have, that is methamphetamine, it is not going to be a cakewalk, it is going to be a hard road for you to follow, and it will be difficult for you to stay out of trouble.

18It seems to me that in the longer term, the community is best served by trying if possible, to facilitate your rehabilitation.   That is what persuades me that I should give you this opportunity.  I am impressed by people who try hard, particularly old lags, (if I can call you that) like yourself, who do show signs of willing to get a real grip on themselves, and it is because you have done that, that I am going to give you this chance, all right?

19OFFENDER:  Thank you.

20HIS HONOUR:  But it will only be one chance.  So the order I make is that in respect of these offences, I convict you in relation to each of them and I impose a community corrections order for a period of two years.  Now that order is about to be drawn up and it will include, obviously the core conditions, those most importantly are that you stay out of trouble and you abide by the terms of the order.

21As I have said, if you fail to abide by the terms of the order, you could be up for three months for the breach, plus any sentence for any offence that puts you in breach, plus of course you will be re-sentenced for these matters.  So it will be up to three months plus whatever is appropriate for these matters.  So it could be a pretty substantial term if you are in breach.

22I will have the order drawn up, and then we will go through the terms of the order and I will make sure you understand them, and also Mr Guggenheimer will go through them with you too.

23OFFENDER:  Thank you.

24HIS HONOUR:  You will have to report to Ballarat on Tuesday.

25OFFENDER:  Okay.

26HIS HONOUR:  I will be making orders that you be subject to supervision for the period of the order which will be two years.  An order that you undergo treatment for rehabilitation for drug abuse and dependency, for alcohol abuse and dependency and you undergo mental health assessment and treatment.

27There will also be a requirement that you submit to offence specific programs that might be thought to be useful to prevent you from committing further offences, or reduce the risk of you committing further offences in the future.  Do you understand?

28OFFENDER:  Yes sir.

29HIS HONOUR:  All right. 

30MS PATTISON:  Your Honour, I'm aware that I may have only provided custodial orders for the forensic sample.

31HIS HONOUR:  Yes.

32MS PATTISON:  If that's the case, I may have to forward them to your associate for signature.

33HIS HONOUR:  Yes, all right.  There was no opposition to the ancillary orders was there?

34MR GUGGENHEIMER:  No, no Your Honour.

35MS PATTISON:  I often do put both forms of order there.

36HIS HONOUR:  Yes.  I rather think you did not in the original swag that we got.  That looks to me as though it is a custody one.  Yes so I will hand that back and you can provide copies of the appropriate one.

37MS PATTISON:  Yes.

38HIS HONOUR:  Mr Guggenheimer.

39MR GUGGENHEIMER:  Yes Your Honour.

40HIS HONOUR:  Would you go with my associate to go through the terms of the order.

41MR GUGGENHEIMER:  Indeed sir.

42HIS HONOUR:  All right, now I have signed the disposal order and the compensation order.  Mr McDonald, I am also going to make an order that you provide a forensic sample by providing a scraping from the inside of your mouth.  You will get a copy of that order in due course.  It is going to be provided to me for signature, but I have to make it clear to you that it will authorise an authorised police officer to ask you for a scraping from the inside of your mouth.  You provide that all well and good, but if you refuse or fail to do that, then the officer will be authorised to take a blood sample from you and may use reasonable force to do that.  I am sure you will not put them to that trouble.  Are there any other matters?

43MR GUGGENHEIMER:  No Your Honour, other than to say that Mr McDonald is very indebted to Your Honour for giving him this opportunity to prove himself and realises what a priceless opportunity it is.

44HIS HONOUR:  Yes, I think he does, and I hope he continues to have that in the forefront of his mind.

45MR GUGGENHEIMER:  For all our sakes Your Honour, for all our sakes.

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