Director of Public Prosecutions v McDonald
[2020] VCC 2053
•14 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00956
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THOMAS LESLIE McDONALD |
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JUDGE: | HIS HONOUR JUDGE D. SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 2020, 10 December 2020 | |
DATE OF SENTENCE: | 14 December 2020 | |
CASE MAY BE CITED AS: | DPP v McDonald | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2053 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Crimes Act 1958; Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; DPP v Derby [2007] A Crim R 302; Martin v The Queen [2015] VSCA 248; R v Mills [1998] 4 VR 235
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Buckland | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr H. Moodie | Victoria Legal Aid |
HIS HONOUR:
Introduction
1
Thomas Leslie McDonald, you have pleaded guilty to an Indictment containing six charges: one charge of burglary,[1] which carries a maximum penalty of
10 years’ imprisonment; two charges of theft,[2] which carry a maximum penalty of 10 years’ imprisonment; one charge of arson,[3] which carries a maximum penalty of 15 years’ imprisonment; one charge of criminal damage,[4] which carries a maximum penalty of 10 years’ imprisonment; and one charge of possess cannabis[5] which, in the circumstances of your case, carries a maximum penalty of five penalty units.
[1]s76(1) Crimes Act 1958
[2]s74(1) Crimes Act 1958
[3]s197(1) and (6) Crimes Act 1958
[4]s197(1) Crimes Act 1958
[5]s73(1) Drugs, Poisons and Controlled Substances Act 1981
2 You have also admitted your criminal record.
Circumstances of your Offending
3 The circumstances of your offending were set out in the Amended Summary of Prosecution Opening for Plea dated 16 October 2020 (Exhibit 1). That document contains a summary of the factual basis upon which you will be sentenced.
4 Your offending can be briefly summarised.
5 At the time of your offending on 16 September 2019, you were aged 21 and living in Melton West. You were then subject to a Community Correction Order, which was imposed at the Bendigo Magistrates’ Court on 5 July 2019, for offences which included criminal damage.
6 On 16 September 2019, at about 3.42 pm, you and your co-offender, then aged 22, were observed to be behaving suspiciously near an address in Toolern Waters Drive, Weir Views. You were seen to be directly in front of a letterbox, looking like you were tying your shoes, as your co-accused walked up the driveway and into the garage of a property before being told to leave.
7 Shortly after this incident, you and your co-offender accessed the rear yard of 9 Toolern Waters Drive, Weir Views, by climbing over a fence. This property was rented by your victim, Mohammed Ali, who was the sole occupier of the premises. Thankfully, he was not home at the time. The two of you then smashed the main bedroom window of the residence and entered the house. Collectively, you ransacked the property and gathered various belongings of Mr Ali, which you placed in a bedsheet and black suitcase obtained from the address. One of you then retrieved a 5-litre red plastic jerry can containing approximately 2-3 litres of petrol from the garage. The petrol was used to start a fire in the main bedroom. Both of you then left the address via the front door, taking Mr Ali’s personal property with you. Witnesses observed smoke coming from this address shortly afterwards. Numerous fire appliances were required to attend and extinguish the fire, which caused extensive damage to the premises.
8 The property was insured, and the estimated claims costs in relation to the damage was $217,803.20. Virtually all of Mr Ali’s personal property was either destroyed or damaged by the fire or stolen. The estimate of this lost property is approximately $62,200.
9 Your conduct in relation to this incident forms the basis of Charges 1, 2 and 3 on the Indictment: burglary, theft and arson.
10
A few hours later, at approximately 6.30 pm, your victim in relation to
Charges 4 and 5 was working as a courier driver, picking up deliveries, driving his brown Kia vehicle. At approximately 6.40 pm, he was waiting to turn left into Micks Road, Melton, as you and your co-offender were crossing
Micks Road. As he drove past you, you used something in your hand to scratch his vehicle on the passenger side. Your conduct in this regard forms the basis of Charge 4 on the Indictment, criminal damage.
11 Your victim stopped his vehicle and put down the front passenger window, asking you why you scratched his car. You denied doing so and told your victim to come and have a look. Your victim parked his vehicle and got out to inspect the damage, leaving the keys in the ignition when he did so. As he was inspecting the damage, your co-offender got into the driver’s seat of the vehicle and shouted at you to get into the car. Your victim ran back to the driver’s side of the vehicle in an attempt to retrieve the car keys to prevent the vehicle from being stolen. Your co-offender then began kicking the victim.
12
The victim managed to reach in and turn the vehicle off and remove the keys before running from the vehicle and yelling out for assistance. You and
your co-offender then rummaged through the vehicle and stole the victim’s iPhone, PDA parcel tracker and StarTrack identification, access card and access key. Your conduct in this regard forms the basis of Charge 5 on the Indictment, theft. You then both ran from the vehicle. However, your co-offender returned and used a knife to puncture one of the vehicle’s tyres before running off.
13 Subsequent police and forensic investigations revealed the cause of the fire to the property being the ignition of combustible materials, such as bed, bedding or carpet in the main bedroom, assisted by the presence of petrol. A jacket, which your co-offender had been seen wearing earlier was located in a bucket in the garage. Extensive CCTV footage revealed the movements of you and your co-offender in the hours surrounding the offending. Your co-offender was not excluded as a DNA contributor in relation to a cigarette lighter located at the property where the arson took place.
14 You and your co-offender were both separately arrested on 23 October 2019. A search of your property revealed, amongst other things, an iPhone belonging to your victim in relation to Charges 4 and 5, and a small amount of cannabis in a bag inside the garage. This being the subject of Charge 6 on the Indictment.
15 You were interviewed in relation to these matters, including the charge of attempted carjacking, which is the subject of proceedings in the Magistrates’ Court. Other than indicating that you were with your friend, Jake, and you were just being a follower, you indicated that you did not wish to tell police what had occurred as you did not want to be a 'rat'. You indicated that you were encouraged to take Xanax tablets that day, and that you took six of them, having never taken that amount before, and that you had no memory of what had occurred after taking the tablets until you got home. You told police that you could not say anything about the offending even if you knew anything. You said that you might have been at the property but had nothing to do with the house burning down or the other offending.
16 You were remanded in custody on that day, 23 October 2019, and have been in custody since then, a period of 418 days, excluding today.
Impact on Victim
17 Your victim in relation to Charges 1, 2 and 3, Mr Mohammed Ali, completed a Victim Impact Statement which was tendered and read to the court (Exhibit 2).
18 In that heartfelt statement, Mr Ali indicated that he felt violated in his own home, a place where he used to feel safe. He indicated that he is now consumed with anger and anxiety since the offending and confused as to why this had happened to him. Since the offending, he has been unable to sleep and remains constantly hypervigilant. As a result of the incident, he has left Victoria, having only recently moved to Victoria, and had not obtained insurance on his personal possessions at that time. Mr Ali indicates:
'Following this horrific event, I had to move in with my sister in New South Wales which meant I had to leave my job in Victoria and was unemployed for a few months … I lost my independence and everything I worked so hard to achieve'.
19 It is clear from Mr Ali’s statement that your offending has had significant adverse consequences for him. Victim Impact Statements are an important means through which victims of crime, such as Mr Ali, can meaningfully participate in the sentencing process, by informing the court of the consequences of offending on them. I have taken into consideration the Victim Impact Statement made by Mr Ali as one of the relevant sentencing factors, in formulating an appropriate sentence in your case.
Nature and Gravity of your Offending
20 Arson is a serious crime, carrying with it a maximum penalty of 15 years’ imprisonment. The damage to and destruction of a home by arson carries with it great risks for nearby buildings, their occupants, and those members of our community who put themselves at risk by serving in emergency services. It is clear from the authorities that except in the most exceptional circumstances, a sentence of immediate imprisonment will be appropriate.[6] General deterrence will generally loom large as a sentencing consideration for the crime of arson.[7]
[6]DPP v Derby [2007] 171 A Crim R 302 at [21]
[7]Martin v The Queen [2015] VSCA 248 at [26]
21 Burglary is frequently committed in conjunction with the crime of arson, as it was in your case. In company, you broke into Mr Ali’s property, ransacked it, and used an accelerant to start a fire in the main bedroom before leaving the property. The property was extensively damaged. This is, in my view, a concerning example of the crime of arson. Adding to the gravity of your conduct, you stole approximately $60,000 worth of personal property belonging to Mr Ali, no doubt accentuating the degree of loss experienced by him through your offending. Your offending behaviour, in my view, was serious, callous and obviously inherently dangerous.
22 In relation to your conduct a few hours later (Charges 4 and 5), there is a need to take care not to punish you in relation to criminal proceedings outstanding in the Magistrates’ Court in relation to this incident. Nevertheless, your victim in that matter was simply going about his business as a courier driver. Whilst I accept in the circumstances that your offending in this regard was likely spontaneous, the maximum penalties applicable in relation to the charges of criminal damage and theft reflect, in general terms, the gravity of your conduct.
Personal Circumstances
23
You are now 22 years of age. You were 21 at the time of the offending. Your personal details were set out in some detail in the psychological report of
Mr Guy Coffey, dated 18 October 2020 (tendered at your plea hearing and marked Exhibit B).
24 You are the fourth of eight children. Your father, an Aboriginal man, died when you were nine years of age. He left the family home when you were still in your infancy, and you have no memory of him.
25 Whilst you do not recall family violence in your early years, your mother has indicated that her subsequent partner was, at times, violent towards her in front of the children and abused drugs.
26 You apparently had a disruptive primary school experience and, at the age of 10, you were diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and prescribed Ritalin by your general practitioner. Your mother recalls you being difficult to manage and prone to angry outbursts. You apparently took Ritalin for about a year, but your mother ceased this medication after her brother, who was then a drug abuser, began regularly stealing the medication.
27 When you were about 11 years old during Year 5 at school, you began attending infrequently and smoking cannabis. You apparently had some assistance with organisations who assist educationally disengaged children, including an Aboriginal cooperative in Bendigo and, for a time, you had an individual tutor and attended a few different schools, but ultimately did not complete Year 5, returning to school briefly in Year 6 but then discontinuing your education permanently at this young age. Unsurprisingly, you have only reached a basic level of literacy, with a very elementary level of numeracy.
28 From about the age of 10, you began stealing from shops with your peers and, as I have stated, you began using cannabis daily from the age of 11, using the proceeds of theft to finance your cannabis use. According to your mother, you also received cannabis from her then partner, who was a regular user.
29 Your drug use escalated at about the age of 17 when you began using methamphetamine regularly, in the context of your mother’s diagnosis of lung cancer and the fact that you became unsettled by this diagnosis. Behavioural issues at home followed, leading to an intervention order restraining you from living with or visiting your mother, which you subsequently breached. In August 2018, you were sentenced to four months’ imprisonment. This was your only time in custody prior to your current remand.
30 You do have some work history, working for your mother’s then partner at about the age of 14 in a landscaping business a few days a week until about the age of 18. In the period between your release from custody in relation to the intervention order breach and your remand in October 2019, you worked as a roof tiler for a period.
31 Save for your period on medication for ADHD, you do not recall receiving any other treatment, psychological or pharmacological, during your childhood or adolescence. Psychologist, Mr Coffey, refers to your:
'significant developmental disorder which was left largely untreated and a difficult early family life resulted in Mr McDonald not completing primary education and becoming addicted to cannabis by the age of 12. It is that history which forms the distal backdrop to the current offending.'[8]
[8]Mr Guy Coffey, Psychological Report (18 October 2020) Paragraph 84
32 Your criminal history dates from October 2017. For such a young man, your history is concerning. In the context of the matters to which I have referred, you have prior convictions in relation to family violence, assault and criminal damage. Concerningly, you received a supervisory Community Correction Order only a matter of months before the current offending on 5 July 2019, for offences which included family violence and criminal damage.
33
In terms of your progress in the year leading up to your offending, you have indicated that you did little and your life was aimless. You lived in
Bacchus Marsh and then, for about four months, with your mother who had moved to Melton. You spent time with friends with whom you smoked cannabis. You used methamphetamine between once a week and once a month. You smoked cannabis throughout the day, beginning soon after you woke. You were not actively looking for work. You were not in a relationship. You did not have sporting or recreational pursuits. You did not exercise. Your weight apparently fell to 55 kilograms. You apparently began associating with your co-offender, a young man whom you had known from your childhood, from about a month prior to the offending. You used cannabis and methamphetamine together. You used methamphetamine with him in the days leading up to your offending, as he was staying in your family home at the time.
34 In the context of going out to obtain cannabis on the day of the offending with your co-offender, you have indicated to Mr Coffey that he gave you a number of Xanax tablets, causing you to report to Mr Coffey that you could only recall fragments of what subsequently occurred. According to Mr Coffey, 'it is likely that Mr McDonald was sedated and disinhibited by the medication even while his actions were apparently purposeful and goal directed.'[9]
[9]Mr Guy Coffey, Psychological Report (18 October 2020) Paragraph 48
Sentencing Factors
35 In formulating an appropriate sentence in your case, I am required to have regard to various sentencing factors. I have already referred to the maximum penalties for your offending, the nature and gravity of your offending, and the impact on your victim. I have also referred to your previous character.
Your level of Responsibility and Culpability
36 Whilst you were, it seems, drug affected at the time of the offending, this does not mitigate or lower your level of responsibility for what you did. Indeed, according to psychologist, Mr Coffey, your actions were goal directed and intentional. Given the forensic investigations following the offending, and the accepted actions of your co-offender, I am prepared to accept that you may have acted as 'a follower' in respect of your co-offender. I note the prosecution concession in this regard in the Crown’s Submissions on Sentence dated 26 October 2020.[10] However, in relation to your contribution to the offending in comparison to your co-offender, I nevertheless regard your involvement as significant and substantial.
[10]Mr Andrew Buckland, Crown Submissions on Sentence (26 October 2020) Paragraph 12
37 I have already referred to your difficult background. Clearly, in many respects, you had a dysfunctional upbringing, being exposed to violence and drug use from a very young age, and you yourself becoming addicted to cannabis by the age of 12. You suffered from a significant developmental disorder which was left largely untreated, and you have extremely limited education. You have no memory of your Aboriginal father.
38 In those circumstances, I accept that you have had a somewhat deprived upbringing, such that your moral culpability for the offending is reduced by virtue of the principles articulated in the High Court decision of Bugmy v The Queen.[11] Pursuant to the Bugmy principles, notwithstanding an offender’s criminal history, a personal history of childhood deprivation and abuse remains a feature of one’s make-up and is relevant to the determination of the appropriate sentence in any given case.
[11]Bugmy v The Queen [2013] 249 CLR 571
Guilty Plea and Remorse
39 I accept that all charges before me settled at a relatively early stage in the criminal proceeding, and that you are therefore deserving of a credit for an early plea. You accepted the factual basis of the prosecution case save for the arson offence at a first committal mention on 16 January 2020. The matter was set down for a contested committal in relation to the arson charge, but that matter was administratively adjourned due to the COVID-19 pandemic. Following negotiations between the parties, the matter finally resolved on 4 August 2020, where you entered guilty pleas.
40 Your pleas of guilty therefore reflect an acceptance of wrongdoing and a willingness to facilitate the course of justice. Your pleas of guilty have spared witnesses giving evidence, and you have saved the community the time and cost associated with contested proceedings. Your resolution of this matter to a plea of guilty occurred within the context of the COVID-19 pandemic, which has had significant consequences on the administration of criminal justice in this State. As the authorities make clear, your plea of guilty in these circumstances has substantial utilitarian value, warranting a significant sentencing discount.
41 Whilst Mr Coffey, psychologist, noted a degree of detachment when you discussed your offending, I am satisfied overall, given your personality structure, that you have articulated a degree of insight in relation to the underlying causes for your offending and, therefore, that a further discount is warranted due to your remorse. Your plea of guilty, of course, is in and of itself capable of evidencing remorse.
42 Due to your limited recollection of the offending, and the opinions expressed in the Extended Pre-Sentence Assessment Report dated 9 November 2020 from Corrections, where it is indicated that you provided limited insight into your offending behaviour, the discount applicable is somewhat moderated but, nevertheless, applicable.
Youth
43 You were only 21 years of age at the time of the offending and, as at the date of sentencing, you are 22. Clearly, therefore, you must be sentenced on the basis that you are a young person. Pursuant to the authorities, in particular the often cited decision of Mills,[12] in the case of a youthful offender, rehabilitation is usually far more important than general deterrence. Punishment may in fact lead to further offending, and therefore individualised treatment focusing on rehabilitation is to be preferred. Due to your relatively young age, rehabilitation must be afforded significant weight in the sentencing exercise.
[12]R v Mills [1998] 4 VR 235
Hardship in Custody
44 You have been in custody since 23 October 2019, some 418 days. I accept that your time in custody, at such a young age, has not been easy. You have spent a significant proportion of your remand time in the context of the extraordinary COVID-19 pandemic. As a result of the pandemic, all personal visits have been suspended indefinitely. I accept that for you this has likely been particularly difficult.
45 Furthermore, there have been significant lockdowns and restrictions on access to work and therapeutic programs, which has no doubt exacerbated the hardship of custody for you. Like all prisoners, you have had to live with the anxiety associated with the likely consequences should COVID-19 enter the custodial setting. As the authorities make clear, a mitigatory allowance is warranted due to the COVID-19 pandemic.
46 You are currently at Ravenhall Prison, but you were previously at Port Phillip Prison. As documented in the Corrections Extended Pre-Sentence Report, you have been the subject of physical assaults whilst in prison. I accept that this has also made your time in custody more arduous.
47 Adding to your hardship in custody, is your knowledge of your mother’s physical fragility given her previous diagnosis with lung cancer. Whilst her condition is, I understand, stable at the moment, your mother is at high risk of serious complications if she were to contract COVID-19, and I accept that this has caused you anxiety during your period of custody.
48 Notwithstanding these difficulties, you have managed to obtain full-time employment as the visitors’ billet. You have also completed a COVID-19 cleaning course, and you are currently undertaking a Certificate 3 in Cleaning Operations at Ravenhall Correctional Centre. You have also been subject to three random urine screens since 25 October 2019, all of which have returned a negative result for illicit substances.
49 Significantly, notwithstanding your incarceration, you have organised employment following your release from prison. In that regard, I have considered the extremely positive letter from Jason Mennillo dated 21 October 2020, tendered at your plea hearing and marked Exhibit C. Mr Mennillo has previously employed you. He owns a gardening maintenance business and is willing to offer you employment after your release from jail. Mr Mennillo refers to you as being a hardworking and dedicated young man who will be a great asset to his company. He is willing to give you five days of work a week coming up to the busy season, and he will also give you transport to the various jobs.
50 Significantly, through Mr Mennillo, you have commenced a relationship with his daughter whilst being in custody. You have identified Amanda Mennillo as being a prosocial support for you, as she does not use illicit drugs.
Rehabilitative Prospects
51
For the reasons that I have articulated, I regard your prospects of rehabilitation as being favourable. Notwithstanding your problematic criminal history and, significantly, your drug problems, you are still a young man and it seems have used your time in custody productively. You maintain the love and support of your family and are able to reside with your mother in
Melton West upon your release. In that regard I note that your mother is present on video for these proceedings today. Your mother has informed Corrections, according to the pre-sentence report, that she will not tolerate drug use. Your mother would be willing to assist you with transport to and from appointments with Corrections. You are engaged, it seems, in a positive and healthy relationship, and you have full-time employment available to you upon your release.
52 The Extended Pre-Sentence Report from Corrections is, overall, a positive report. You have referred to your lengthy period of imprisonment as a wake-up call, and it seems you are motivated to embark upon what will likely be a difficult period of rehabilitation for you. Particularly given your youth, it is, in my view, important to impose a penalty which appropriately facilitates your rehabilitation.
Sentence
53 The prosecution in this case appropriately drew my attention to the gravity of your offending, the need for any sentence to reflect the sentencing purposes of general and specific deterrence, denunciation of your conduct, and just punishment.
54 Mr Buckland, who appeared on behalf of the Director, helpfully provided material in relation to current sentencing practices. Clearly, sentences of imprisonment of varied lengths have been imposed in relation to the serious offence of arson.
55 At your initial plea hearing on 26 October 2020, the prosecution submitted that a combination sentence involving a term of imprisonment followed by a Community Correction Order would be within the range, but that you had served an insufficient period in custody as at that date. Of course, you have now spent a number of weeks in custody since your initial plea hearing, in circumstances as I have described them.
56 Your counsel urged upon me a combination sentence allowing for your imminent release from custody. As I have earlier indicated, I ordered you to be assessed by Corrections in relation to your suitability for a Community Correction Order, and that report overall is favourable. You have been assessed as suitable for a Community Correction Order, with various conditions being recommended.
57 In my view, any sentence I impose must reflect the sentencing purposes of: specific deterrence, given your criminal history; general deterrence, given the nature of your offending; denunciation of your conduct; community protection; and just punishment. However, in my view, your youth and ultimate rehabilitation are important factors in the sentencing synthesis.
58 Having given this matter anxious consideration, given your youth, disadvantaged background, your time in custody, and, it seems, the availability of supports in the community which collectively represent strong protective factors, I have come to the conclusion that your imminent release back into the community with appropriate supervision is appropriate.
59 In coming to this conclusion, I do not wish to detract from the gravity of your offending and the need for you to be appropriately punished. However, given the particular constellation of powerful mitigatory factors in this case, I have come to the conclusion that your ultimate rehabilitation, which is a critical means through which the community is protected, is best served by allowing you to take advantage of the opportunities which currently exist for you in the community.
60 Upon your release, you will be subject to a Community Correction Order. As the authorities make clear, Community Correction Orders can be imposed for serious offending, and are by their very nature punitive. Indeed, through the imposition of appropriate conditions, a Community Correction Order can be significantly punitive. In that regard, you will be subject to a condition requiring you to undertake unpaid community work, to reinforce to you the need for just punishment for your conduct.
Sentence to be Imposed
61 Mr McDonald, I now come to the portion of my sentencing remarks where I impose sentences for the charges on the Indictment.
62 In relation to Charges 1, 2 and 3 on the Indictment, burglary, theft and arson, those offences forming part of a series of offences of a similar character, you are convicted and sentenced to an aggregate sentence of 14 months’ imprisonment.
63 On Charge 4 on the Indictment, intentionally damaging property, you are convicted and sentenced to 3 months’ imprisonment.
64 On Charge 5 on the Indictment, theft, you are convicted and sentenced to 4 months’ imprisonment.
65 On Charge 6 on the Indictment, possession of cannabis, you are convicted and fined $150.
66 I direct that the sentences of imprisonment imposed in relation to Charges 4 and 5 be served concurrently with each other, and concurrently with the sentence of imprisonment imposed on Charges 1, 2 and 3.
67 That makes a total effective sentence therefore of 14 months' imprisonment.
68 In addition to the aggregate sentence of 14 months’ imprisonment in relation to Charges 1, 2 and 3, I order you to complete and undergo a Community Correction Order. That order will commence immediately upon your release from prison in, as I calculate, a few days' time. The duration of the order will be 2 years.
69 In addition to the core conditions attaching to the Community Correction Order, the following conditions will also apply to you:
(i) you must perform 150 hours of unpaid community work over a period of 2 years;
(ii) you must undergo assessment and treatment, including testing, for drug use or dependency as directed by the regional manager;
(iii) you must undertake any program and/or courses that addresses factors related to your offending as directed by the regional manager.
70 Pursuant to s.48CA of the Sentencing Act 1991, I order that 50 hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
71 You must be under the supervision of a Community Corrections officer for a period of 2 years.
72 I direct that you be subject to judicial monitoring, with your first monitoring hearing before me in approximately one months’ time at 9.30 am, on Tuesday, 19 January 2021.
73 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to a total effective sentence of 3 years and 6 months with a non-parole period of 2 years and 6 months.
74 Finally, in relation to the period of imprisonment imposed in combination with the Community Correction Order. Pursuant to s.18 of the Sentencing Act 1991 I declare a period of 418 days has been served by way of pre-sentence detention. For the sake of clarity, it is my intention that Mr McDonald be released in a matter of days' time, subject to sentence calculation by the appropriate authorities.
75 Pardon me for one moment. Just pardon me for a moment. Before I speak with Mr McDonald directly, firstly Mr Buckland are there any issues in relation to the sentence, any ambiguities or have I missed anything? If you can unmute please, Mr Buckland.
76 MR BUCKLAND: No, there are not, Your Honour. There was a disposal order sought in relation to the cannabis, which was filed back in August, I think, from my instructor.
77 HIS HONOUR: Yes, I will make the disposal order sought in relation to the cannabis.
78 MR BUCKLAND: Yes.
79 HIS HONOUR: Mr Buckland, whilst you are there I just wanted to be clear. The sentence is essentially a combination sentence, 14 months plus the 2 year CCO, less the 418 days. By my calculations that will have Mr McDonald released in a matter of days. It may be six days or it may be less. I am just a bit hesitant to stipulate given the allowances made these days with COVID.
80 MR BUCKLAND: Yes, well that might be the case. I think you are right, it probably would be just a short period.
81 HIS HONOUR: Yes.
82 MR BUCKLAND: He obviously does have the plea in relation to the other matter tomorrow.
83 HIS HONOUR: Yes, indeed.
84 MR BUCKLAND: Which might play into that as well.
85 HIS HONOUR: Yes, thank you.
86 MR BUCKLAND: Yes.
87 HIS HONOUR: Just wanted to check from your perspective there is no issues with regards to how the sentence has been couched, given the practical realities of the situation.
88 MR BUCKLAND: No, no, I think it functions perfectly fine, Your Honour, as far as I can see.
89 HIS HONOUR: Yes, thanks. Mr Moodie, any issues from your perspective?
90 MR MOODIE: No, Your Honour.
91 HIS HONOUR: As I say, I think as best I can calculate your client has I think six days left. But that may be subject to change given emergency - I think they are called emergency management days or something of that nature in relation to this order. So it is my intention that your client be released imminently in a matter of days. Of course, subject to anything that happens in the Magistrates' Court tomorrow. I understand Her Honour is, from you, is aware of these proceedings today.
92 MR MOODIE: Yes, Your Honour.
93 HIS HONOUR: Yes, all right. Mr McDonald, do you understand what I have just imposed? All right, we'll just have you unmuted for a moment. Thanks, Mr McDonald, are you there?
94 OFFENDER: Yeah, I sort of a clue.
95 HIS HONOUR: Say that again?
96 OFFENDER: I sort have a clue.
97 HIS HONOUR: Sort of out of the loop, all right. Well, let me tell you what's happened. In relation to - and I will let Mr Moodie speak with you after this hearing so that he can go through each of the sentences but I will give you the bottom line.
98 The bottom line is you have what is called a combined sentence of 14 months' imprisonment, followed by a 2 year Community Correction Order. Now, I will explain a little bit about a Community Correction Order in a moment but what I want to tell you is this. The term of 14 months is reduced by any time that you have served in jail, and in your case you have almost served the entirety of the 14 months in jail, you have done 418 days. So, Mr Moodie will speak with you and there may need to be consultations with the prison but it is my intention that you be released from jail in a few days' time
99 OFFENDER: Okay.
100 HIS HONOUR: So that you can live with your mother, start your work, but most importantly you can start the Community Correction Order; do you understand that?
101 OFFENDER: Yep.
102 HIS HONOUR: So that is it in a nutshell, I will leave Mr Moodie to explain the nuts and bolts of it after the hearing.
103 But I want to talk to you about the Community Correction Order. You were assessed by Corrections for the purposes of the Community Correction Order, weren't you?
104 OFFENDER: Yep.
105 HIS HONOUR: And no doubt they would have explained to you what a Community Correction Order or a CCO involves?
106 OFFENDER: Yes.
107 HIS HONOUR: So there are a number of what they call mandatory - or conditions that attach to every CCO that every person gets. They include things like an obligation that you do not commit any other offence punishable by jail during the two year period. That you do what you are told, that you comply with any obligations or requirements, you report to and receive visits from Corrections. You have to report to Corrections within two working days of being released from prison. You have to notify Corrections within two days if you change your address or your job. You cannot leave Victoria without permission from Corrections and you have to obey all instructions from them. Do you understand that?
108 OFFENDER: Yep.
109 HIS HONOUR: In addition to that, for you, I have attached a number of additional conditions and they include these conditions. You are going to have to perform 150 hours of unpaid work over the two years; all right? Now I understand that you may well be working full time, you can do these hours on the weekend. You basically have to find time to do them.
110 Out of the 150 hours I am allowing 50 hours to be used up, to be calculated through drug treatment and other programs that you will be required to do. So you will have to undergo assessment and treatment, including testing for drug use. You will have to participate in any offender programs that relate to your offending, which will include things that were related to why you committed the arson offence; do you understand?
111 OFFENDER: Yep.
112 HIS HONOUR: And you will be supervised by Corrections, which means you will have a case worker and you will be reporting, I think, once a week, at least at the beginning to Corrections so that they can monitor your progress; do you understand that?
113 OFFENDER: Yep.
114 HIS HONOUR: And finally, there is one other condition which is an important condition, it is called judicial monitoring. And what that means is that I am going to monitor your progress on this order. So do not think that when you get out of jail and you start doing your CCO that you are finished with me, because you haven't. You will be coming back regularly to appear before me. I will get a report from Corrections each time you come back to court telling me how you are going and if there are any problems, I will hear about it pretty quickly.
115 The problems could be reoffending, not turning up to appointments, turning up late, having a bad attitude, failing a drug test, refusing to do a drug test, anything of that nature. So, if you muck up on this order I will hear about it pretty quickly and there will be consequences; do you understand?
116 OFFENDER: Yep.
117 HIS HONOUR: If you breach this order - sorry, Mr Swindon? Sorry, we just lost your vision for a while. Mr McDonald, can you still see and hear me all right?
118 OFFENDER: Yep.
119
HIS HONOUR: Sorry about that. I was telling you about consequences. Should you breach this order, this CCO, by any of the means through which I have just explained or say for example you commit another offence punishable by jail next week or the week after or any time over the next two years, you can be brought back to court before me for breaching the order and punishment for breaching an order like this can include not only financial penalties but also jail for breaching the order. But perhaps most importantly I can re-sentence you in relation to the offending, so the arson and the other offences. So, in other words we go back to the beginning and I can
re-sentence you again.
120 And I will indicate to you, so that you are in no doubt, Mr McDonald, if you breach this order I will take a very dim view of your behaviour and you will be in grave jeopardy of receiving further jail from me. Do you understand that?
121 OFFENDER: Yep.
122
HIS HONOUR: I want you to understand that I have imposed a penalty which has focused on your rehabilitation, mainly because of your young age and the things that are in place, as I understand it, right now in the community. So, this is very serious offending, but to a degree I am taking a chance on you,
Mr McDonald, I am letting you out earlier so that can embark on your rehabilitation. Please do not let me down. If you do there will be serious consequences. Do you understand that?
123 OFFENDER: Yep.
124 HIS HONOUR: Understanding that, do you agree to undertake the Community Correction Order? Because I cannot impose it unless you agree to do it.
125 OFFENDER: Yep.
126 HIS HONOUR: Do you agree?
127 OFFENDER: I agree.
128 HIS HONOUR: Normally you would be in court, in the courtroom with me and you would sign the order, the CCO. But for obvious reasons you are not here and so I am going to mark the CCO with a note that says that you have verbally consented to the order. Do you understand that?
129 OFFENDER: Yep.
130 HIS HONOUR: Thank you. Thank you, any other matters, Mr Buckland, first? You were muted then. Sorry, Mr Buckland.
131 MR BUCKLAND: Sorry, Your Honour. I think I have already mentioned the disposal order so that covers everything, Your Honour.
132 HIS HONOUR: Yes, thanks. I'll sign that in chambers later. Mr Moodie, anything from your perspective?
133 MR BUCKLAND: Thank you.
134 MR MOODIE: No, Your Honour, I will try and talk to Mr McDonald and explain the sentence to him further.
135 HIS HONOUR: Thank you. Thanks, Mr Swindon, if you can adjourn the court, thank you.
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