Director of Public Prosecutions v McDonald
[2020] VCC 732
•29 May 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-00320
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK MCDONALD |
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JUDGE: | HER HONOUR JUDGE GAYNOR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 29 May 2020 |
CASE MAY BE CITED AS: | DPP v McDonald |
MEDIUM NEUTRAL CITATION: | [2020] VCC 732 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr F. Cameron | Office of Public Prosecutions |
For the Accused | Mr M. Habib | Leanna Warren & Associates |
HER HONOUR:
1Mark McDonald, you have pleaded guilty before me to one charge of affray and two charges of common law assault. You have also pleaded guilty to one summary charge of contravening a condition of bail, that is by failing to reside at the assigned address.
2The facts underlying your offending are as follows. In late April 2018 the co-accused in this matter, Glenn Fisher and his partner urgently needed a place to stay and they ended up residing with the victims in this matter, Dylan Bontoff and his partner, Shelby Cohan. They were originally going to stay only for two nights but stayed well beyond the initial period and paid board. During this time, Ms Cohan borrowed $100 from Ms Plowman saying she would repay her from a tax return she was to receive. In mid-July 2018 about 77 days after they had moved in, Mr Fisher and Ms Plowman suddenly left after an argument between the two couples.
3Subsequent to this there was a continuing conversation about a demand by
Ms Plowman and Mr Fisher of Ms Cohan for the $100. The exchange became more and more heated. Just after 9 am on 5 August 2018 both you and
Mr Fisher attended the home of Mr Bontoff and Ms Cohen which was in Odessa Avenue, Reservoir. You were driven there via an unknown female. You attended with Mr Fisher believing that he used to live there and that he was allowed and had been invited to attend the house to get some belongings and to get some money that had been owed to him. The two of you attended the front door where Mr Fisher knocked on the front doors and windows with your assistance, yelling, 'Pay up'.4At the time, Cohen and Bontoff and their three children were asleep inside the house. Ms Cohen woke Mr Bontoff and told him what had happened and meanwhile, the two of you then climbed a side fence into the rear yard. Mr Bontoff took a broken wooden chair leg from the kitchen and went out to the backyard with the intention of scaring you off. He yelled at the two of you, 'What are youse doing in the backyard'. You and Mr Fisher then turned towards Mr Bontoff who thought you were going to assault him. As you advanced towards him, he began swinging the baton, striking both you and Mr Fisher.
5Eventually you overpowered Mr Bontoff, punching, grabbing and forcing him backwards into the house through the laundry door. Once inside the laundry, the two of you continued to punch Mr Bontoff and Mr Fisher managed to grab the chair leg from Mr Bontoff and hit him on the head with it. A 3- to 4-inches long knife was then produced at which time Ms Cohen came into the laundry and began struggling with you over possession of it. You pushed her backwards up into the hallway and up against the bathroom door, then forced the knife down towards her throat telling her to let go.
6At this stage, Ms Cohen saw her son, Cooper, in the hallway and the boy went to punch you, so she let go of the knife and pushed Cooper back and told him to go next door and get the neighbour to call police. This then occurred. While you and Cohen were outside the laundry in the hallway, Fisher and Bontoff were still wrestling inside. You then left Cohen in the hallway and went to the laundry, shutting the door behind you. Bontoff then wrestled Fisher up against the wall, you rejoined the struggle and then essentially Bontoff dropped and was sitting on a stool while demands were made by Mr Fisher for money, he saying he did not have any.
7The two of you then left via the laundry door and jumped over the side fence. You ran to the car and were driven away. Police attended soon after together with an ambulance and minor injuries were found on Mr Bontoff including a laceration to the scalp, the palm of his right hands and bruising on his eye, some abrasions on the left side of his body, a minor laceration to his left arm, a bruise under his left bicep and an abrasion under his left arm. Each of these injuries occurred during the affray and the common law assault.
8He received three stitches to his right hand and four staples to his scalp. Eventually you rang Ms Cohen, pretending to be a friend of Bontoff to find out what had happened and then you rang her again and said she had to pay or she and the kids were next. Eventually you were arrested on 24 August were you were interviewed and denied attending the addressing, saying that you knew Fisher. DNA samples were taken. You were found to be a contributor to a DNA swab taken from the wooden chair leg the probabilities of which was reasonably strong. In any event, plea negotiations commenced in December 2019 and were eventually agreed to on 11 March 2020.
9There are no victim impact statements in this matter.
10The matter did proceed by way of contested committal but as I have said, matters were ultimately dealt with. I now turn to your personal circumstances.
11You are now 42 years of age. You are the eldest of six children. Your parents separated early in your life and you have had no relationship with your father but you have a very good relationship with your mother who supported you through these proceedings and on your release from custody it is your intention to go and live with her. You completed year eight, then moved out and lived with a partner when you were 16 and a number of other people.
12Essentially the problem for you has been that you have been a drug user for many, many years. You said to psychologist, Mr Ball, you enjoyed a happy supportive childhood but the problem seems to be that you got into drug use very early in the piece. In particular, you have used methamphetamine over an extended period of time using about half a gram daily. Along the way you have, if I can put it this way, you have compiled a very long and consistent criminal history starting in 1994 and you appearing in court in nearly every year since.
13Most notably you have an extraordinary number of traffick offences. You have been dealt with for dishonesty offences, you have been dealt with for drug offences, stealing cars, burglary, theft, intentionally destroying property, it really is an extraordinarily long prior criminal history. You have served a number of terms of imprisonment along the way.
14You have been dealt, you have, as far as I can see, you have once appeared before the County Court and that was in 2017 for an attempted armed robbery for which you received a 18 months' imprisonment with a minimum term of 12 months. In any event, the only reason this matter is presenting before the County Court today is because you were initially charged with aggravated burglary. The scenario is this. On 1 March 2019 you were sentenced to a term of two years' imprisonment by the Magistrates' Court for a consolidation of charges including unlawful assault, burglaries, car theft, trafficking methamphetamine, handling stolen goods and the like.
15This had a minimum term attached to it of 16 months. The non-parole period ended on 15 October 2019 but you were not released on that date because of the charges I am dealing with here. Because of the COVID-19 restrictions and their effect upon sentencing estimations, at the date of the plea, that is 26 March 2020, the two years was considered to have been served as at that date. Primarily, the submission by your counsel was that as a matter of totality, I should not sentence you in a way which extended your sentence any further and it was my express view on that date that a magistrate would have sentenced you to about nine months' imprisonment had the matter been heard on 1 March and cumulated about three months of that.
16Because your sentence has completely expired, I am unable to sentence you in any way, which in my view, properly answers the totalitarian principles to which I must have regard. That is because I am unable to sentence you in a way which involves any concurrency. You have already served seven months extra than you would have had this matter not been hanging over your head as it were. And you have no pre-sentence detention, so I am not even able to sentence you to seven months and determine that it has already been served by way of pre-sentence detention.
17You have now reached a stage, it would seem, that you are determined to make a few changes in your life. I note that whilst in custody, you have undertaken a large number of courses and you have also returned a number of random urinalysis tests, all of which have proved negative. So, the other unfortunate result of your appearing before me in the circumstances that you have is that ordinarily you would be leaving gaol without the assistance of parole. It is all very well saying that I am going to change my life but when a man has been as entrenched an offender as you have been, Mr McDonald that is an easier thing to say than to do. I am satisfied you have got a prosocial and supportive mother to go to but it is also my view that it is in your best interests and in the community's best interests that you leave custody with some sort of assisting structure around you.
18And to that end and for that reason only, I had you assessed for a community corrections order for which, surprisingly, you have been found suitable. You told the assessing officer that at the time you offender you were under the influence of drugs and it is noted you have been subject to nine orders before. You have never completed any. Your last order was in 2011.
19Anyway, the assessing community corrections officer noted that you have been reflective of your life, you want to change it, you want to engage in treatment and avoid negative peers. Now, can I just say this and I am telling you this for free, Mr McDonald, is this probably your first real go at giving up drugs and trying to go straight?
20OFFENDER: It is, Your Honour. My, um, ah ‑ ‑ ‑
21HER HONOUR: Can I tell you what rule No.1 is?
22OFFENDER: Yes.
23HER HONOUR: Absolute rule No.1, you are going to have to make a whole lot of new mates. I cannot tell you ‑ ‑ ‑
24OFFENDER: Yeah, well as I said I've got no mates, so ‑ ‑ ‑
25HER HONOUR: Can I - well, they are not your mates anyway, they are just people you know who you use drugs with usually. Can I tell you, I cannot tell you how many blokes I have seen come to this court and, you know, they leave here ready to go, full of ambition, I am going to do better and they run into an old mate down the street. Have you got many old mates living around Taylors Lake?
26OFFENDER: No, I haven't, Your Honour, no.
27HER HONOUR: But it is like rule No.1. You have just, you cannot hang around with anyone you knew before, particularly anyone who uses. People who are still using do not like to see other people not use. You have seen that, 'Come on mate just a taste, just a taste'.
28OFFENDER: Yes, Your Honour.
29HER HONOUR: Off you go. That is the absolute No.1 rule. I have seen 100s of men come back to this court starting off with the best intentions in the world and they just have, they run into an old mate and the whole thing, once you fall off the wagon, they decide they might as well be hung for a sheep as a lamb and off they go. If you do have difficulty and use, tell your drug treatment officer. Do not just go, 'Okay, I've wrecked it now I can't do anything'. Go back and tell them, all right? Just keep going.
30OFFENDER: I appreciate, yep.
31HER HONOUR: All right?
32OFFENDER: Yep.
33HER HONOUR: So, that is - no mates. And if you do use, always tell them.
34OFFENDER: Yes, Your Honour.
35HER HONOUR: They will support you. It is when you use and go off and do not tell anyone and then you're using gets worse and worse and worse and then it is all a disaster and back you come, all right?
36OFFENDER: Yep.
37HER HONOUR: All right, so before I can place you on this order, and I am going to place you on this order, I must outline to you the conditions attached to the order and ask if you consent to being placed on the order, Mr McDonald, all right.
38OFFENDER: (Indistinct words).
39HER HONOUR: And you are getting out today are you?
40OFFENDER: Yes, Your Honour.
41HER HONOUR: You are all sorted to go?
42OFFENDER: I am, yeah, ready to go.
43HER HONOUR: Well, the first condition is that you must report to the community corrections office within two working days of the making of this order, that is by Tuesday of next week. The order is going to last 12 months and while you are on the order, you do not commit any offence punishable by imprisonment. That does not mean you have to get gaol, it means if you get caught doing something you could be gaoled for like knocking off a box of matches from Woolworths, that is a breach.
44OFFENDER: Yep.
45HER HONOUR: While on the order you may not leave Victoria without the permission of the Community Corrections Office. You must report any change of address or employment within 48 hours of making that change. You must report to and receive visits from the Community Corrections Office. You must not attend upon the Community Corrections Office under the influence of drugs or alcohol and you must obey all lawful directions of the Community Corrections Office. I am going to order that you undertake 150 hours of unpaid community work. That may not happen in the near future. They are not doing it at the moment because of COVID. Secondly, you are to attend for treatment and rehabilitation for drug use. All right?
46OFFENDER: Yes, Your Honour. That's ‑ ‑ ‑
47HER HONOUR: Now, you are going to need that because you are going to have to learn about how to get off drugs. I will give you an example. One of the hardest things is triggers, all right, things that make you really want to use. There was one man that appeared in front of me years ago and he got triggered, starting to really want to use drugs when he was traveling on a train because - a particular train line because that was the line he always used to go and see his dealer. You know, it is as complex as that, all right?
48OFFENDER: Yep, yep, yep.
49HER HONOUR: All right, and I want you when you go, you will be assessed by ACSO but you need to insist that you have an intensive drug program. In fact I am going to attach judicial monitoring, that means you come back in front of me in three months because I want to make sure they have you on the right drug program. You need a really intensive one, all right?
50OFFENDER: Yep, that sounds good, Your Honour.
51HER HONOUR: All right, well, I mean look I hope it works for you but it is going to take a lot of work your part, you have got to understand that, all right?
52OFFENDER: Yeah, I'm keen, I'm ready to go, so hopefully I'll, ah, change my ways.
53HER HONOUR: I hope so - it is just hard ‑ ‑ ‑
54OFFENDER: I'm pretty - I'm pretty confident.
55HER HONOUR: It is hard when you get out - sorry?
56OFFENDER: I'm pretty confident I've, ah, matured a bit and I - I feel stronger mentally so, um, I'll take it step by step ‑ ‑ ‑
57HER HONOUR: Yes, yes, yes.
58OFFENDER: ‑ ‑ ‑ my goals are to, um ‑ ‑ ‑
59HER HONOUR: Good. Well, I hope you can, Mr McDonald, I really do. Now, I am going to order that you attend for assessment and treatment for mental health difficulties ‑ ‑ ‑
60OFFENDER: Yep.
61HER HONOUR: ‑ ‑ ‑ all right? Because there is always, you know, you are not a user and an offender for that long without picking up some trauma along the way. The other thing is you have been offending so long that even if you are not using drugs, offending is a bit of a habit for you. You know, you get into a - life is never a clear blue sky, Mr McDonalds, something always go wrong and you got have - of offending about 50 times a year which you have had since the late 90s, then something goes wrong, you are short of money, and I have seen this happen a lot of times before as well. You have just got this instinct to go and knock something off or steal something or engage in something, you know, you get into a blue with someone it is very easy for you to take that next step and get into assaulting behaviour and that is because you are used to doing it. So, you are going to need some assistance with that as well. All right, am I making sense to you?
62OFFENDER: Yes, you are, Your Honour, yeah.
63HER HONOUR: All right, there is going to be supervision and there will be judicial monitoring. Now, COVID is sort of affecting a lot of this. The drug treatment will be over the phone. Judicial monitoring, usually what I will do is rather than getting everyone in court, I will get a report. So, I want - and will we have one in three months' time. 28 August.
64OFFENDER: Yes, Your Honour.
65HER HONOUR: And if I decide I want to get you in here because things are going off the rails or the drug treatment is not right, we will just sort that out, all right?
66OFFENDER: No worries, Your Honour, thank you.
67HER HONOUR: All right, so are you prepared to enter this order?
68OFFENDER: I am, yep.
69HER HONOUR: Thank you very much. All right, that was a really messy sentence wasn't it? Luckily I can edit it so it reads beautifully but still.
70MR HABIB: I might note, Your Honour, I slightly misled Your Honour. There were two ‑ ‑ ‑
71HER HONOUR: Again?
72MR HABIB: Well, there were two County Court matters, one was also an armed robbery in 2012.
73HER HONOUR: An armed robbery, all right, I will factor that one in but at the end of the day I simply, because of the way things have fallen, you have done that extra seven months, so you can put that down to experience but I cannot factor in a sentence which in any way reflects totality and, as I said, I think you are just - you are going to need the structure. Do not underestimate how hard it is going to be, all right?
74OFFENDER: Yes, Your Honour.
75HER HONOUR: Do you get on well with your brothers and sisters?
76OFFENDER: I do, Your Honour, yep. We've, ah ‑ ‑ ‑
77HER HONOUR: They are not sick of - they are not over you?
78OFFENDER: Ah, not yet, Your Honour, um, a lot of catching up to do, so that's what I'm looking forward to.
79HER HONOUR: All right, but you just be ready for on the inside you have got all this structure around you ‑ ‑ ‑
80OFFENDER: Yeah, that's right.
81HER HONOUR: ‑ ‑ ‑ you be ready for when you get outside, suddenly getting this burning desire to use, all right?
82OFFENDER: Yeah, yep.
83HER HONOUR: A lot of it is psychological. You know, you have obviously done really well inside but ‑ ‑ ‑
84OFFENDER: Ah, yeah ‑ ‑ ‑
85HER HONOUR: ‑ ‑ ‑ once you get outside and there is freedom and all that sort of thing, your mind is going to start playing tricks on you and going to make you want to do.
86OFFENDER: Yeah, I - yeah, I think boredom's a big part too, Your Honour, so, um, you know, I'm really looking forward to getting me self a job, you know, make some, ah, legit money, so, that's what's, ah, one of my goals are.
87HER HONOUR: See how you go. That is not the easiest thing in the world either at the moment, because of COVID. I am not trying to, you know, make life hard for you but anyway look, good luck to you.
88OFFENDER: I appreciate it, thank you.
89HER HONOUR: I mean, you know have a look around your mother's house and see what you can do, build her a new room.
90OFFENDER: Yeah. Yeah.
91HER HONOUR: All right, just do whatever you can.
92OFFENDER: Thank you, Your Honour, I appreciate it.
93HER HONOUR: No, that is fine. Yes, Mr Prosecutor.
94MR CAMERON: Your Honour, can I just confirm the disposal order, did Your Honour make that earlier in the week or?
95HER HONOUR: I did.
96MR CAMERON: All right, thank you.
97HER HONOUR: And I have got it here, thank you, Mr Prosecutor.
98MR CAMERON: Thank you.
99HER HONOUR: I am hopeless at keeping an eye on these.
100MR CAMERON: I was not suggesting that at all, I just wanted to make sure that I got that ‑ ‑ ‑
101HER HONOUR: No, I am - again, I am volunteering that, Mr Prosecutor ‑ ‑ ‑
102MR CAMERON: Yes, thank you.
103HER HONOUR: ‑ ‑ ‑ that is how it is.
104MR CAMERON: Thank you. If I can be of any further assistance, Your Honour, I am here.
105HER HONOUR: No, that is - thanks very much. All right, now I have - I am going to stand down because my associate has got to print out the community corrections order which I will sign and we will send it to the prison. So, I can get everyone to go actually. So, we do not need to - no, so we will be sending this out to the prison for you to sign, actually we need to do it straightaway so he can go. All right, I will stand down. Are you ready to print that out now? I want to get - no, I will stand down. So, you stay there though. All right, I will stand down so I can sign it out the back and then you can send it straight through. All right, thank you very much.
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