Director of Public Prosecutions v McDonald

[2013] VCC 1881

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 12-01372
CR 12-01374

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALLAN MCDONALD
WILLIAM SCORSE

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 November 2013
CASE MAY BE CITED AS:	DPP v McDonald
MEDIUM NEUTRAL CITATION:	[2013] VCC 1881

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr G. Taberner
For Accused McDonald	Ms R. Raggart
For Accused Scorse	Mr A. Papadimitropoulos

HIS HONOUR:

1Allan McDonald and William Scorse, you can remain seated until the end gentlemen.  You have pleaded guilty to committing the charges of aggravated burglary and robbery on your victim Gregory Foenander  at 403 Frankston-Dandenong Road, Frankston North.  This offending occurred on 13 November 2011, some two years ago.  The Parliament has set a maximum penalty of 25 years' imprisonment for aggravated burglary and 15 years for robbery.

2William Scorse, you have also pleaded guilty to a charge of threat to inflict serious injury to Greg Foenander  on the same occasion.  Parliament has set a maximum term of imprisonment of five years imprisonment for that offence.

3Allan McDonald, you have also pleaded to a charge of trafficking in a drug of dependence.  In this case, it was cannabis.  Mr Foenander  was part of your offending in the sense that he was the person to whom the drugs were to be delivered.  Parliament has set a maximum penalty of 15 years imprisonment for this charge of trafficking.  This offence occurred in October 2011 and formed part of the background for the first three charges on the indictment.

4I will turn first of all to the circumstances of the offending.  I will deal with the offending in chronological order.  In this way, there will be some context to the serious offending which both of you have committed.  In the period before October 2011, Greg Foenander  was the supplier and dealer of cannabis to you, Mr McDonald.  In about the middle of October 2011, you were approached by an intermediary acting on behalf of Foenander  to obtain four one once bags of cannabis.  Foenander  actually got his cannabis from another source.

5You, Mr McDonald, went ahead and arranged for a contact of yours to supply a total of eight ounces of cannabis valued at between $1600 and $1700 for Foenander.  Foenander  did not turn up to complete the deal.  Your supplier was “dirty” on you and was threatening towards you, or so you felt at that time.  In effect, you were the conduit between the supplier of the eight ounces of cannabis and your dealer Foenander .  That is the basis of your offending in Count 4 on the indictment.

6The detection for this offence comes entirely from admissions made by you in the record of interview with the police in relation to the aggravated burglary and the robbery charges.

7Charge 1, both of you have pleaded guilty of the aggravated burglary of the home of Gregory Foenander  on 13 November 2011.  On that day, you both had been looking after and entertaining your children.  At the end of the day, each of you were consuming alcohol together.  At some stage, you both decided to go to the Seaford Hotel on Frankston-Dandenong Road in Seaford.  You arrived at the hotel at approximately 11.44 pm and left at 2.26 am the following morning.  You were captured entering and leaving the hotel on CCTV.  When you left the hotel, you were last observed walking in the direction of Frankston-Dandenong Road.

8At approximately 2.50 am, both of you approached the complainant's address at 403 Frankston-Dandenong Road, Frankston North.  As you approached the complainant's address, you, Mr McDonald, discussed with Scorse that you wanted to confront Mr Foenander  as he had “a bit of a beef” with Mr Foenander.  In your drunken state, each of you approached the front door of the premises and banged on the door and the window.  You demanded Foenander  to open up.  One of you ended up smashing the front window and both entered the house through that smashed window.  This is the charged of aggravated burglary.

9Once inside the house, you have turned on the lights and yelled "where are you?"  You have found Mr Foenander  still in his bed.  Mr Foenander  recognised you, Mr McDonald.  You yelled at Foenander  "you shouldn't have fucked us around, don't fuck with us".  Whilst yelling, you, McDonald, punched Mr Foenander  in the head a number of times.  According to Mr Foenander , it was five or six times.  You denied that number of punches and said in the police interview that you only slapped him and may have punched him once.

10As the result of being assaulted, Mr Foenander  sustained the bruising to his head, a small lump in his jaw and a headache.  Mr Foenander  felt trapped in his bedroom and was terrified.  Whilst Foenander  was being assaulted by you, McDonald, he could hear Mr Scorse searching through the house, throwing items around and opening up cupboards and drawers.  McDonald was asking Foenander  "where's your chuff and money?"  Mr Foenander  told him that he did not have much.

11Scorse then returned to the bedroom, having armed himself with a number of kitchen knives from within the premises.  Mr Scorse then threw a number of knives at the complainant, who was still situated on his bed.  The knives narrowly missed Mr Foenander .  Whilst holding the remaining knives, Scorse said to Foenander  "tell us where it is or I'll stab you, I don't give a fuck".  That is the basis for Charge 2 and the only person charged with that is Mr Scorse, a threat to inflict serious injury.

12As a result of being in fear of being stabbed, the complainant told both of you that there was cash together with some cannabis in the golf bag in the next room. You collectively then stole the roll of cash totalling some $950 and some cannabis from the golf bag.  You also took money from the wallet of Mr Foenander  and his personal cards and mobile phone. A Hisense flat television was taken from the premises as well.  That is the robbery charge.

13Both of you then left the premises.  The victim Foenander  was badly shaken and had superficial wounds from your attack.  The neighbours to Foenander’s house had heard the noise and commotion and rang the police.  The police attended a short time later as the result of the 000 calls.

14McDonald and Scorse were located by police in the Frankston-Dandenong Road.  Scorse was at that time carrying the flat screen television.  As police approached, the accused ran from police in different directions.  McDonald was chased along Chile Street by Constable Jacobson and finally into Radiata Street.  At this point, McDonald threw the stolen cash and cannabis into bushes.  McDonald was not apprehended at that time.

15Scorse was chased by Sergeant Blick along Frankston-Dandenong Road.  He was pursued into the front yard of 381 Frankston-Dandenong Road, where he disappeared into the long grass.  Scorse was subsequently located by a police dog in the driveway of 383 Frankston-Dandenong Road.  You were arrested.  McDonald was arrested at his home address on 15 November 2011.  He directed the police to where he claimed the cash and cannabis had been thrown but those items were not located.

16On 14 November 2011, Mr Scorse was interviewed by police.  The allegations were put to him which he denied.  You further exercised your right to say “no comment” on legal advice.  On 15 November, the next day, Mr McDonald was interviewed by police.  He made admissions to the offences of aggravated burglary, robbery and theft.

17A selection of admissions are as follows:  in question and answer 13, you had been with a friend at the Seaford Hotel to play the pokies, you were very intoxicated: "I mentioned I had a run in with the occupant.  I wanted to confront him.  I was not very happy with him.  I knocked on the door, kicked the door, glass smashed, alcohol fuelled.  I entered the premises and I slapped Greg, slapped him once and punched him once, telling him how sorry I was, circumstances of how this all came about, I just stuffed him around for three days".

18The next admission comes in question and answer 14: "My main intention really was to go there to give him a scare, maybe a slap, a scare".  Question 15: "My intention wasn't to rob, pilferage anything or whatever, my intention was to scare because I've been scared myself."  Question 16 to 18: "I've seen young fellows leaving there between the age of 15 and 17 years old.  If he's dealing marijuana then obviously he's selling it to the kids that age."

19Question 19: "He handed me a roll of notes, a bag of dope between 7 and 14 grams.  We only got five, six hours away when the police car pulled up."  Question 20: "I threw the roll of money and the bag of weed that Greg had given me."  Question and answer 66: "A window was smashed."  Question and answer 78: "We climbed into the bedroom.  I was yelling out 'Greg!', I turned on the light, 'you know why I'm here, why I'm pissed off, man', I've slapped him once.  There wouldn't even be a scratch or a mark on him."

20Question 80 and then the answer: "It wasn't planned."  Question and answer 85: "Once I hit him, I started tearing up because I felt so guilty, 'mate, I'm so fucking sorry mate, this isn't me'."  Question and answer 87: "Open handed, and then I've hit him with a fist."  When asked about what you took, what Greg handed to you, you denied seeing or throwing any knives at the scene and you agreed that he would have been absolutely terrified.

21In answers 193 to 310, you explained the circumstances of how he was seeking to obtain cannabis for Greg Foenander  and how the deal fell through, explained how he was able to receive a bit of cannabis of personal use as payment but in the end received nothing.  That relates to the trafficking charge.

22Mr McDonald, you cooperated with the police in the record of interview.  It is clear that you held some grievance against Foenander  due to the failed drug deal.  The offending was not planned and has all the hallmarks of an impromptu drunken idea where you roped your friend Scorse into helping you whilst stumbling home.

23The offences of aggravated burglary and robbery committed by both of you are serious charges.  The maximum penalties reflect the seriousness attached to this type of offending.  The aggravating features are that this is a home invasion, that two of you were acting together, that the threat of violence was directed to Foenander  and it all occurred late at night.  The fact or allegation that Foenander  is a drug dealer does not excuse your offending.

24The offence of trafficking a drug of dependence committed by you, McDonald is at the lower end of that offending.  You were the conduit between the grower, supplier and the dealer.  The amount of drug and its value was not large in the context of drug trafficking.  The deal was not completed.  The net or direct benefit to you was not significant if the transaction was even completed.  However, without drug trafficking there is no supply to users, who may be younger people in our community.

25The cumulation in sentencing you will reflect the objective seriousness for this offence and your admissions forming the basis for the prosecution against you.  Mr Scorse, the extra offence of the threat to inflict serious injury in the course of the aggravated burglary also calls for some separate and cumulative sentencing because your actions have increased the level of violence within the principle offence.  The tempering feature is that the threats were not carried through, but of course Foenander  would never know that at the time of the offence.

26Conduct of this prosecution.  The matter proceeded to contested committal on 1 August 2012.  The trial was listed for hearing on 15 July 2013.  The four charges now on the indictment were pleaded guilty to on that day.  The original plea hearing date was set for 31 October 2013.  Mr Scorse, you failed to appear on that day and the plea hearing was adjourned until 22 November 2013.

27I turn now to the impact on your victim.  The victim of the aggravated burglary, robbery and threats to inflict serious injury, Mr Foenander , filed a victim impact statement sworn 10 July 2013.  This was Exhibit B on the plea.  In respect of the physical injuries, he describes them as just some cuts and bruises.  Mr Foenander  says he has far more mental long term effects.  He states he is jumpy and does not sleep as well now.  He also stated he had to sell his house and move in with his father.  There was no explanation as to the connection between the offences and the need to sell his house.  A home invasion is always going to affect a victim's sense of security and comfort.  Mr Foenander  is no exception.

28I will turn to your personal circumstances.  First of all dealing with you Mr McDonald.  You are now 41 years old, you are the father of four children aged between 8 and 20 years.  Ms Perrin, who attended court on your plea, is your long term de facto partner.  At the time of these offences you were separated from her.  You were born in Scotland.  Shortly after your birth, your biological father left your mother.  Your mother remarried to an engineer.

29When you were nine years old, you moved to Zambia where your stepfather was working in the mining industry.  You originally went to the European school in Zambia and then you were sent to boarding school in Scotland for three years.  At the age of 16, your family then moved to Australia.

30You finished school here at Year 10 level.  You then completed an apprenticeship as a textile mechanic.  You have worked in a boning room, Nylex factory as a press operator, a labourer for a bricklayer and are currently employed at Jayco up until last Friday, the caravan manufacturer.  You have had a consistent work history.

31I note during the course of your plea that you have been dealt with in court subsequent to these offences for the charges arising from prior offending against your employer Nylex.  In summary, you burgled the boss.  There are no outstanding charges against you.

32In 2006, you were injured in a motorcycle accident.  As a result of those injuries you received, you spent six weeks in the Alfred Hospital.  The injuries interfered with your work capacity.  About two and a half years ago, you separated from your de facto.  You were drinking heavily and using cannabis more regularly.  All this occurred around the time of these offences.

33A report dated 24 October 2013 prepared by Pamela Matthews, Forensic Psychologist, was tendered on your plea.  It is the exhibit marked MAC1.  In her opinion, you have expressed genuine embarrassment and remorse for your offending against Foenander .  Ms Matthews was giving her opinion on the basis that you are a man with no prior history of offending.  This is not a correct history.  Ms Matthews says that your offending was driven by your excessive use of alcohol and cannabis.  She is of the opinion that over the past 18 months, your depressive symptoms have improved.  Ms Matthews recommend alcohol and narcotic rehabilitation programs to assist you.  These are matters you can attend to upon your release from prison.  Mr Cash properly conceded that there are no Verdins considerations in sentencing you for these offences.

34As I have said before, Mr McDonald, you had prior offending and it included an appearance in the Frankston Magistrates' Court in October 2002 for handling stolen goods and possessing property the proceeds of crime.  You were fined without conviction on that occasion.  In 2007, you were convicted for possession of a controlled weapon and fined.  I have been appropriately told, as I have said before, by your counsel Mr Cash that subsequent to these offences, you were charged with burglary offences against your employer Nylex, which occurred prior to these offences.  The DNA evidence was the connection between you and those old offences.  There are now no outstanding matters.

35Mr Scorse, you are now 30 years old.  Your journey to this court room for these offences has been shorter and very different from your co-offender, Mr McDonald.  You grew up in Port Melbourne.  When you were about eight years old, your mother abandoned you.  You moved to live with your maternal grandparents in Rosebud and basically grew up there.  Your father died in 2009, aged 60.  He was a chronic alcoholic and you had little to do with him.  Your mother is on disability pension with psychiatric and substance abuse problems.  She attended your plea hearing on the first day.

36Your mother had a relationship with a man by the name of Lawrence Chi.  Mr Chi was a painter and doctor and had a long criminal career.  Mr Chi became your father figure.  You have told Warren Simmons, psychologist, that whilst Mr Chi was a hard man he was always there and treated you like his own son.  Mr Chi died in 2007.

37When younger, your relationships with your mother had been marked by physical abuse and discipline.  She was constantly under the influence of drugs and was unpredictable in her behaviour.  You attended a total of 13 schools before you were exempted from attendance at Year 8.

38You took up an apprenticeship as a baker at Ballarat and worked in that capacity for some six years until you were incarcerated at the age of 19.  After serving your sentence, you have worked as a scaffolder and in carnivals and dealing in second hand car parts on the internet.  You are on a disability support pension due to the psychiatric related symptoms that have been talked about.

39You have been in a long term relationship with Nicole Pearce.  Together, you have four children between the ages of 12 and 18 months.  The reason put forward for your failure to appear on 31 October 2013 was you could not bring yourself to explain to your children that you were going away for a long time.  The impact of incarceration on your children and your de facto is one of the many factors I have taken into account when fixing your sentence.

40You have been abusing alcohol and cannabis for most of your adult life.  You have also used heroin.  On the day of the assessment by Mr Simmons, you had taken eight milligrams of buprenorphine.  In the past you have used amphetamines, LSD, ketamine and cocaine.  In short, you have tried and continue to use a wide range of illicit drugs.  The drug abuse is an entrenched and long term problem for you.

41In the past, you have been hospitalised for psychiatric problems.  You had three admissions to the psychiatric unit in Ballarat, the last of these was some three years ago.  You have also been admitted twice to a psychiatric unit in Frankston, the last time was some five years ago.  Some of these admissions were involuntary.

42You have also spent time in the psychiatric unit at Port Phillip Prison and in the Acute Assessment Unit at the MAP.  The timing of these admissions is unclear from the material tendered at your plea.  I accept that you may have ongoing mental health problems and that there is a serious risk that the imprisonment may have a significant adverse effect on your mental health and this tends to mitigate the punishment.  It also enlivens the fact that a sentence will weigh more heavily on you than a person of normal mental health.

43Mr Simmons in his report dated 4 July 2013, which is Exhibit SC1, is of the opinion you require psychiatric assessment to determine whether antidepressant medication may be appropriate.  Your counsel submitted that you are not taking any medication and did not want to because of the flattening effect it had upon you.

44The counterbalancing sentencing consideration is your prior criminal history.  You have previously been before the courts.  In 2003, you had two court appearances, the most significant was at the County Court here at Melbourne on 21 July 2003 for making threat to kill and false imprisonment and other related charges.  The sentence on that occasion was a total effective sentence of five and a half years with two years non-parole period.  This was offending, as I understood it, against a doctor that you thought did not do enough to save one of your children.  You were 19 years old when you were incarcerated.

45The second court hearing was in August 2003, shortly after the one I have just talked about, for burglary and you were sentenced to a total of seven days imprisonment to be served concurrently with that sentence.  These offences are similar to the present offending.  In your favour, however, there is some ten years gap between the time of that sentence and the time of this one.  I understand that you have no outstanding matters.

46In submissions, both counsel for both prisoners, submitted that parity in sentencing was a consideration here.  I find that in respect of each offender by role, background and previous offending, that the end result in balancing all the sentencing factors that you are equally culpable and to be punished equally to remove any sense of grievance between you as co-offenders.

47In Mr McDonald's case, he is older, he had the connection to the victim.  He was the instigator of the offending and directly involved in it.  He cooperates with police and will be gaoled for the first time.  In your case Mr Scorse, you are younger, originally a follower in the offending.  You have become more active, threatening and enthusiastic and that is the basis of Count 3. You exercised your right to remain silent with the police.  You have previously served a lengthy sentence as a very young man, a 19 year old.  You have as I have said mental health issues and have ultimately cooperated in this prosecution by your plea.  There is a big gap in the time between the first imprisonment as a 19 year old and now.  There is rehabilitative hope if you can manage mental health and drug abuse problems.

48I now turn to sentencing considerations.  The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions and the protection of the community.  In sentencing you, I must have regard to a range of factors such as the seriousness of your offences, your culpability for them and your personal circumstances and those of your victim Mr Foenander .  I am require to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible you as offenders can be rehabilitated and reintegrated into society.

49Each of you have pleaded guilty.  You have pleaded guilty in these proceedings.  The plea was indicated after the committal proceedings.  Your plea of guilty has the utilitarian value of allowing the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of court and police resources to deal with other matters.  Your plea indicates public confidence in the legal process set up to protect the community.

50You have by your plea relieved your victim Foenander  from giving evidence against you here in a trial.  It facilitates some closure for him as a victim.  Whilst the plea of guilty is late - that is, at the trial date - I accept it indicates remorse on your part.  Your plea is a clear acknowledgement by you that you accept responsibility for your criminal behaviour in this case.  Your plea also recognises you are willing to facilitate the course of justice in the community.

51In your case, Mr Scorse, your prospects of rehabilitation are directly linked to whether you can control your cannabis and alcohol abuse.  Combined with that, you need to comply with some psychiatric treatment and prescriptions of medication.  These are matters that you will have to deal with on your release from prison.  In your case, Mr McDonald, your prospects of rehabilitation will only be enhanced if you can get control of your alcohol and cannabis use upon your release from prison.  The overwhelming considerations in this case are general and specific deterrence and denouncing your conduct by the application of just punishment.  In this case, it is imprisonment.

52The aggravating features of these very serious charges of aggravated burglary include a home invasion, the home was of your dealer in your case, Mr McDonald, and motivated by some perverted sense of injustice.

53The prosecution submitted that the totality of your offending calls for an immediate term of imprisonment.  I have previously referred to the maximum term set out for each of the offences by Parliament.  The prosecution submitted that the considerations of general and specific deterrence and denunciation ought to be accorded full weight given the circumstances of this case.  I accept that the considerations of special and general deterrence, combined with the denunciation of these offences are significant in sentencing you to imprisonment.

54The prosecution submitted a range of a total effective sentence of five to six years and a non-parole period of three to four years was appropriate.  Your respective counsel could see that imprisonment was the only reasonable sentence.  The submission really was that a low minimum term should be imposed to allow both of you to approach a proper rehabilitative path on your release.  Would you both please stand.

55Mr McDonald. 

56On Count 1, you are convicted and sentence to three years' imprisonment. 

57On Count 3, you are convicted and sentenced to two years' imprisonment. 

58On Count 4, you are convicted and sentenced to two years' imprisonment. 

59I order that six months of the sentence in Charge 3 and Charge 4 be served cumulatively on the sentence in Charge 1 and on each other.  That is a total effective sentence of four years imprisonment.  I order that you serve a period of two and a half years before being eligible for parole.

60I declare that you have served five days pre-sentence detention to be deducted administratively from this offence.  I order that there be a retention of the forensic sample which the police have taken from you before under 464ZF(b) of the Crimes Act. I make the compensation orders sought in respect of the payment of $1464 to AAI Limited, which is AAMI.

61Mr Scorse.  In respect of Charge 1, you are convicted and sentenced to three years' imprisonment. 

62In respect of Charge 2, you are convicted and sentenced to one year imprisonment.  In respect of Charge 3 you are convicted and sentenced to two years' imprisonment. 

63I order that six months of each of the sentences of Charges 2 and 3 be served cumulatively on the sentence in Charge 1.  That is a total effective sentence of four years.  I order that you serve a non-parole period of two and a half years before being eligible for parole.

64I declare you have served 31 days pre-sentence detention to be deducted administratively from your sentence.  I order the retention of the forensic sample under s.464ZF(b) that the police took from you in the past. I order that the compensation sought on 22 November 2013 in the sum of $1464 be paid to AAI Limited, which is AAMI.

65In respect of each of you, but for your pleas of guilty, I declare that under s.6AAA of the Sentencing Act, I would have given you sentences of a total effective sentence of six years with a non-parole period of four. Thank you.

66Is there anything else?

67MR TABERNER:  No, Your Honour.

68HIS HONOUR:  I have signed those orders here, Mr Taberner.

69MR TABERNER:  Thank you.

70HIS HONOUR:  Everything okay there?

71MS RAGGART:  Yes, Your Honour.

72HIS HONOUR:  You are right with that?

73MR PAPDIMITROPOULOS:  As Your Honour pleases.

74HIS HONOUR:  Thank you.  If you could remove the prisoners please.  Thanks.

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