Director of Public Prosecutions v McDonald
[2023] VCC 1673
•14 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00797
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEBASTIAN MCDONALD |
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JUDGE: | HER HONOUR JUDGE HARPER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 August 2023 | |
DATE OF SENTENCE: | 14 September 2023 | |
CASE MAY BE CITED AS: | DPP v MCDONALD | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1673 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of Guilty – One charge of Armed Robbery – Two charges of Possession of Drug of Dependence – Remorse – Box cutter knife
Legislation Cited:
Cases Cited:Bugmy v The Queen [2013] HCA 37 (2 October 2013), Worboyes v The Queen [2021] VSCA 169
Sentence: 12 month CCO with conviction, aggregate fine
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Botros | Office of Public Prosecutions |
| For the Accused | Ms G. McInerney | Victoria Legal Aid |
HER HONOUR:
1Sebastian McDonald, you have pleaded guilty to one charge of armed robbery and two charges of possession of a drug of dependence, namely Cannabis L and Diazepam respectively, all committed on 13 January 2023.
2You have also pleaded guilty to the summary charge of committing an indictable offence whilst on bail, committed the same day as the charges on the indictment.
3The maximum penalty for the offence of armed robbery is 25 years' imprisonment.
4The maximum penalty for the offence of possess drug of dependence being cannabis, where the court is satisfied that the offence relates to a small quantity and was not committed for purposes of trafficking, is a penalty of not more than five penalty units.
5The maximum penalty for the offence of possess drug of dependence other than cannabis, where the offence was not committed for the purposes of trafficking, is 30 penalty units or one year imprisonment.
6The maximum penalty for committing an indictable offence whilst on bail is 30 penalty units or three months' imprisonment.
7You come before the court with no prior criminal history. You served three days in custody relevant to this offending.
Circumstances of the Offending
8On 13 January 2023 at around 8.35 am, the victim, 15-year-old George Joseph, was standing on Platform 1 at the Sunshine railway station. Mr Joseph was engaging in his hobby of video recording freight trains and was not disturbing any persons at the station.
9At around 8.40 am, you yelled out to Mr Joseph from Platform 2, saying ‘shut up or I’ll come stab you’. You then proceeded to walk to Platform 1 while making eye contact with Mr Joseph and intimidating him. Mr Joseph ran away from you, towards the end of Platform 1 as he was scared of your behaviour towards him.
10Mr Joseph said you appeared very angry and he was very frightened so he looked around for someone to help him but was unable to see anyone. He then tried to call out for help but due to his overwhelming fear he was unable to yell.
11He ran to the end of Platform 1 and you followed him.
12You then confronted him and said, ‘Give me your money’. He told you he did not have any money and that he had already used what he had to purchase food. You then produced a 10-centimetre box cutter knife with a chrome blade from your pocket. Mr Joseph was extremely fearful that you were going to stab him.
13You then said to Mr Joseph, ‘Give me your electronic devices otherwise I’m going to kill you’. Mr Joseph gave in to your demand and handed you his Samsung A13 mobile phone. This is the basis of Charge 1, Armed Robbery.
14It was submitted that you felt unsafe because of Mr Joseph’s actions and believed that he was being verbally abusive to you and filming you. There is no evidence to support this and it in fact seems you were the only aggressor.
15You then walked away and returned to Platform 2 and boarded a train towards Sunbury. Mr Joseph approached a man at the station for assistance who escorted him to Protective Services Officers to report what had just occurred.
16At about 9.05 am that same day, Protective Service Officers Salman and Oliva located you at Keilor Plains railway station where you were placed under arrest.
17When you were arrested, the officers searched your person and located the box cutter in your right pocket. You were also in possession of two mobile phones, one being that belonged to Mr Joseph.
18They also found in your possession four white pills containing diazepam and a small bag containing 9 grams of cannabis. This makes up the basis of the two charges of possession of a drug of dependence.
19At the time of this offending you were on bail for other alleged offending.
Record of Interview
20Once you were arrested you took part in a Record of Interview and made admissions to the offending as well as providing the following account. You said:
· 'I holded someone up at Sunshine train station with a knife' [sic].
· 'I went over to see what he was saying, and then he had ran off, so I thought he was being a smart-arse and saying stuff to me, so I told him, like, "Are we gunna have to fight or something, 'cause you're, like, saying stuff, and now you're saying all this". He's like, "Nuh, nuh," I was like, "All right, I won't fight you," and then - yeah, that's when I pulled my knife. And then I put the knife back, and I didn't do anything to him with it, just to scare and intimidate him with it.'
· 'I pulled my weapon out just 'cause I was wanting to intimidate him so he knew, like, I wasn't joking, but I wasn't gunna do anything .......... ‘cause, like, I'm not that type - type of person. And then, next minute, he's like, "Just take my phone," and I was like, "I don't need your phone," pretty much. "Yeah, just take it, just take it, I don't wanna get hurt," I was like, "All right, I'll take it, and I wasn't - wasn't gunna hurt ya.'
21The prosecution allege that you were being dishonest when you said in your record of interview that Mr Joseph voluntarily gave you his mobile phone and that you intended to return the phone to him. They also dispute your claim that you did not threaten your victim.
22I note you claim to have been having auditory and visual hallucinations and experiencing paranoia at the time of the offending and raise the possibility of this as an explanation for you behaviour.
Gravity of Offending
23The offence of armed robbery is a serious one but it is conceded that your conduct was towards the lower end of seriousness. There was some pre-planning in that you had armed yourself with a box cutter knife.
24Your victim was confronted by an angry and intimidating figure whilst he was engaging in a harmless hobby. It would have been a frightening experience for anyone, let alone for a 15-year-old boy. Fortunately, there was no injury sustained by the victim and I note there is no Victim Impact Statement.
25The total amount of cannabis and Diazepam found in your possession was of a small quantity and not considered a traffickable amount in either instance.
Plea of Guilty
26The parties agree that your plea of guilty was entered at an early opportunity. This has significant utilitarian benefit. You have saved the Court and the community the time and expense of running a trial and spared the victim the ordeal of giving evidence. In those circumstances, you have facilitated the administration of justice and you are entitled to a benefit for that.
27The utilitarian benefit of your plea is enhanced by the fact that the Worboyes1 considerations are engaged. This results in a more pronounced amelioration of sentence than at other times.
Remorse
28By your plea of guilty, you have demonstrated an acceptance of responsibility for your offending. You expressed remorse in you record of interview and again to Ms Kocic in your psychological assessment. I take this into account.
Personal Circumstances
29I will now turn to your personal circumstances.
30You are a 19-year-old indigenous man of Yorta Yorta heritage. You were 18 years of age at the time of your offending.
31You were born in Albury-Wodonga, and you are one of five children, having two older maternal half-brothers, a younger brother and a younger sister.
32Your childhood was marked by dysfunction and trauma.
33Your father committed suicide when you were aged four. You had not met him before his death.
34At age six you found your maternal uncle unconscious on the ground from a drug overdose from which he subsequently died. You recall trying to wake him up by shaking him but to no avail. This incident still haunts you.
35From an early age you were exposed to and were of a victim of family violence.
36You were physically abused by your mother, and you were often exposed to her drinking alcohol as well as her neglect of you and your siblings.
37Your mother re-partnered when you were young, and your stepfather physically assaulted you and your mother and siblings. You have memories of trying to protect your mother from your stepfather and this led to him harming you instead.
38You describe your mother as neglectful and say that you were fortunate as a child on occasions where you had a proper meal as most of the time your mother would spend her Centrelink payments to purchase alcohol and cigarettes.
39Due to the physical abuse from your stepfather and an allegation that he also sexually assaulted your brother, you and your siblings disowned your mother because she chose an abusive man over caring for her children.
40During your schooling you struggled with a range of learning difficulties. You believe that you were diagnosed with dyslexia and Attention Deficit Disorder at around the age of five.
41At age nine or 10 you moved to Melbourne, and you resided in Melton for three years.
42At age 11 you were diagnosed with an intellectual disability. In Ms Vidette Turner’s speech pathology report, dated June 2015 and marked as Exhibit 4, you were found to have a severe receptive language disorder and a severe expressive language disorder. This was compounded by your severe behavioural difficulties.
43You were suspended from your primary school in Grade 6 due to behavioural issues. You then relocated to Wodonga with your mother and siblings where you felt settled, however returned to Melbourne where your schooling continued to be disrupted.
44You were suspended on two occasions but completed Years 7 and 8 at a mainstream high school. You then left school in Year 9. You left the family home at 13 years old.
45You became homeless after leaving the family before you moved to Wodonga with your friend Bailey Rickard and his mother. You remained there for a year but subsequently engaged in crime with Mr Rickard until an Intervention Order was put in place. You are unsure if this order is still active.
46You then lived with your older brother Kane in Geelong before moving in with your former girlfriend in Sunbury.
47Currently, you are residing in North Shore with your brother Kane and his partner. They provide you with some stability.
48On your return to Wodonga, you completed Year 10 at a flexible learning centre. After this, you commenced employment with your brother Kane. This did not last for an extended period as you and Kane got into an argument, and you wanted to keep the peace at home.
49You most recently worked as a concreter for your ex-partner’s father in early 2022.
50You have expressed interest in gaining employment in roof tiling.
51In regard to your social life, you claim that you were able to make friends easily when you were younger but that has become more difficult as you have gotten older.
52You currently have few acquaintances and see your siblings as your support, namely your brothers Ryan and Mason, as well as Kane who you see as a father figure.
53You have had a several serious romantic relationships in the past, the most recent ending in a Family Violence Intervention Order.
54In July 2021 you were diagnosed with post-traumatic stress disorder. This stems from the death of your uncle which you witnessed as a child. You experience instances of psychosis and nightmares. You struggle with sleeping and have taken non-prescription medication to alleviate your symptoms.
55You struggle with self-regulation and controlling your emotions. You have completed anger management classes in the past, but you found these unhelpful.
56You have attempted suicide on two occasions. These attempts, you say, were triggered when the hardships in your life were compounded to the point where you wanted to find an escape.
57A number of your family members struggle with serious mental health issues including Bipolar Disorder, ADHD and paranoid schizophrenia.
58You first tried alcohol at age 12 but did not enjoy the taste of it and rarely drink. In relation to substance abuse however, you were aged 13 when you began to engage in heavy cannabis use and would smoke 3-4 grams per day. This increased to 15-16 grams a day at age 16. Your cannabis use ceased during your first period of incarceration in January 2023. While you have subsequent court appearances, there is nothing prior to this offending.
59You began using methamphetamine at age 16 and would smoke 2-3 points at a time. You liked the buzz that this drug provided and the alertness as well as being more socially stimulated. I note that you have not used ice since June 2022.
60I consider the principles cited in the case of Bugmy v The Queen [2013] HCA 37 (2 October 2013), to have some application in the case. You have a background of disadvantage, trauma, transience and instability. You have also been exposed to and have been a victim of family violence, physical abuse and neglect from a young age. This has all been compounded by your intellectual disability and no doubt by your drug use from an early age. I will moderate the sentence accordingly.
61I was provided with a psychological report from Ms Daniella Kocic dated 9 June 2023.
62Ms Kocic finds you to have good insight and judgment as far as your past behaviour goes and notes you have ceased cannabis and ice use. She diagnoses you with cannabis and stimulant use disorders that are in sustained remission.
63The report identifies a number of challenges associated with intellectual disability which are relevant to you. These issues are compounded by alcohol and substance use.
64Ms Kocic further opines that you have symptoms of post-traumatic stress disorder, as per your self-report. She believes you meet the criteria for drug induced psychosis as you experience auditory hallucinations.
Sentencing principles and factors
65The principles of general deterrence, denunciation and just punishment are of course relevant considerations but in your case I consider that rehabilitation is of primary importance. With appropriate supports, your prospects of rehabilitation are reasonable. Your rehabilitation will be of benefit not only to you, but it is in the best interests of ongoing community protection.
66You were assessed and are considered to be a moderate risk of reoffending on the basis of your subsequent criminal history, your substance use, and your severe mental illness.
67I note you have never received counselling for your mental health or drug use. You are currently motivated to address your mental health, find your own housing and connect with cultural supports. You retain the support of your brother Kane and his girlfriend, and you are now in receipt of Centrelink payments, which you have survived without for some time.
68Your counsel, Ms McInerney, submitted on your behalf that I should sentence you to a Community Corrections Order. Mr Botros, for the prosecution, did not oppose this course.
69On 31 August 2023 you were assessed for a Community Corrections Order. This was after failing to attend on four previous occasions as arranged by your case manager and the assessor. Your failures to engage cause me serious concern as to both your ability and willingness to comply with a Community Corrections Order.
70During the assessment you continued to deny parts of the offending and minimise your role in it. This exacerbates the concerns I have; given your age and your intellectual disability I am prepared to place you on an order.
DISPOSITION
71In relation to Charges 2 and 3 on the indictment, possession of a drug of dependence, being cannabis and Diazepam respectively, you are sentenced without conviction to pay an aggregate fine of $150.
72In relation to Charge 1 and the related summary offence, you are convicted and sentenced to a Community Corrections Order for a period of 12 months.
73You are to report to Geelong Community Corrections Service within two working days of being sentenced.
74You are to comply with supervision.
75You are to undergo assessment and treatment as directed for your mental health.
76You are to undergo assessment, treatment and testing as directed for drug addiction.
77You are to undergo programs to reduce reoffending.
78And you are to comply with the requirements of a Justice Plan.
79Mr McDonald, are you prepared to comply with the order?
80OFFENDER: Yes, Your Honour.
81HER HONOUR: If you fail to do so, you will be resentenced because Corrections will breach you. You do not get five chances to attend a Corrections appointment like it took you to attend the first one. You must attend as directed and you comply with any and all lawful directions of Corrections as you go.
82If you are breached, you will be brought back before me for resentence and I will resentence you. Nothing will be off the table. That means that Youth Justice, adult imprisonment, are all available options to me if you come back before me. It is not something I want to do but if you do not comply with that order, that is what will happen.
83Now, if you are prepared to comply with the order, I will have it printed and get you to sign it now.
84OFFENDER: Yes, Your Honour.
85HER HONOUR: Do you need to go through that order with your client?
86MS McINERNEY: I don't think so, Your Honour, given that Mr McDonald is on a Magistrates' Court corrections order.
87HER HONOUR: Yes. Thank you.
88MS McINERNEY: Thank you.
89HER HONOUR: Now, Mr McDonald, you are to attend at Community Corrections in Geelong within two working days. I suggest you attend there as soon as practicable and comply with all directions of Community Corrections staff once you attend those appointments as directed. Do you understand?
90OFFENDER: Yes, Your Honour.
91HER HONOUR: Thank you. You can be seated.
92Is there anything else from either party?
93MR BOTROS: Your Honour, there is a disposal order that was sent through.
94HER HONOUR: Yes. The disposal order. Is that opposed?
95MS McINERNEY: No, Your Honour.
96HER HONOUR: I will make the disposal order.
97MR BOTROS: Thank you, Your Honour. Nothing further.
98HER HONOUR: Anything from you, Ms McInerney?
99MS McINERNEY: No. Thank you, Your Honour.
100HER HONOUR: We will adjourn the court till 10.30. Thank you.
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