Director of Public Prosecutions v McDonald

[2020] VCC 266

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01878

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW MCDONALD

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF SENTENCE:	18 March 2020
CASE MAY BE CITED AS:	DPP v McDonald
MEDIUM NEUTRAL CITATION:	[2020] VCC 266

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:   Sentence, aggravated burglary intent to steal in possession of offensive weapon, theft of motor vehicles, long term drug problems and associated mental health issues, prior convictions for dishonesty and violence, continuing support of family and rehabilitative efforts on remand

Legislation Cited:  s6AAA Sentencing Act (Vic)
Cases Cited:

Sentence:12 months imprisonment and Community Correction Order for 15 months

S6AAA declaration:   3 years with a minimum non parole period of 2 years

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APPEARANCES:	Counsel	Solicitors
For the Director	Ms J. Cavka	Office of Public Prosecutions
For the Accused	Ms N. Menegas

HIS HONOUR: 

1Matthew McDonald you have pleaded guilty to seven counts of theft, one charge of aggravated burglary and the related summary offence of tamper with a motor vehicle.  The maximum penalties are as follows: theft 10 years; aggravated burglary 25 years; tampering with a motor vehicle, two penalty units or 14 days imprisonment. 

2The circumstances of your offending are set out in the prosecution opening dated 20 January 2020.  The facts giving rise to the offences can be described as follows.

3Incident 1: Charges 1 and 2.  Between 31 May and 2 June 2019 a Toyota Hilux EZH 049 parked in the front yard at 33 Edmondson Street, Lalor was stolen.  It was valued at $2000.  On 2 June you arrived at the Coles Express Service Station in Spencer Street, Thomastown driving this vehicle.  You filled up the vehicle with unleaded petrol valued at $63.43 cents and you drove off without paying for the fuel.  This was witnessed by a Coles Express employee and recorded on CCTV.  The Hilux was found on 10 June outside 6 Karingal Way, Thomastown and a fingerprint was located which matched your print.  On 27 June 2019 police searched your address and they found clothing that you were wearing which is shown in the CCTV footage.

4Incident 2: Charges 3 and Charge 4. Between 11.00PM on 2 June and 6.30AM on 3 June a Nissan sedan XGW 362 was stolen from outside 37 Michael Street, Lalor.  It belonged to Robert Byrne.  It was valued at $2000.  On 3 June 2019 at 7.45AM you arrived at the Coles Express at 127 Plenty Road, Bundoora, driving the stolen 1995 Nissan sedan.  You put $26 worth of unleaded petrol in the petrol tank and you drove off without attempting to pay for the fuel.  Again, your conduct was witnessed by an employee at the Coles Express and was captured on CCTV.  The following day the vehicle was located burnt out in Bundoora. 

5Incident 3: Charges 5 and 6. Between 4.00PM and 6.00PM on 10 June 2019 a 1987 Nissan sedan, QHX 180 was stolen from outside 25 Michael Street, Lalor.  The vehicle belonged to George Dimitriades and it was valued at $2000.

6On 11 June 2019 at 9.04AM a male and a female attended at
Coles Express in 27 Spencer Street, Thomastown.    You were driving the stolen 1987 Nissan sedan.  You filled it up with $50 of unleaded petrol.  Then, you got back in the vehicle and you drove off without making any attempt to pay for the fuel.  A Coles Express employee witnessed this, and it was captured again on CCTV; the vehicle was later located burnt out in Curtin Avenue, Lalor. 

7You are not charged in relation to criminal damage of these vehicles and so I have no regard to that; and further, I was told on the plea that these car theft charges in respect of the first three incidents are based on you knowingly driving the stolen cars, rather than having been the original thief.

8Incident 4: Charges 7 and 8 and the summary charge of tampering with a motor vehicle.  Charge 7 is aggravated burglary.  Charge 8 is the theft connected to the aggravated burglary. At 12.30PM on Saturday, 22 June 2019, Ms Christie Joseph and Mr Alvin Chan were preparing to go out to do some errands.  Ms Joseph locked the house up and went outside.  Mr Chan was outside, and he heard a loud bang and thought it sounded like shattering glass.  He looked around and he saw you loitering near the passenger side of a blue vehicle registered SWP 951. 

9The vehicle was parked on the corner of Louise and Ruth Streets in Lalor. 
Mr Chan saw you and he saw you had had a silver knife in your hand.  Mr Chan and Ms Joseph got into their car and they reversed out of the driveway.  Mr Chan drove down the street.  Ms Joseph saw you running behind the car waving the knife around.  She described the knife as approximately 15 to 20 centimetres long.  Mr Chan and Ms Joseph decided to drive around the block and back towards their home as they were concerned as to what you were going to do.  Mr Chan drove past you and turned right onto Ruth Street and continued to drive around the block.  He then made a U-turn and drove back towards their house and observed you standing at the front door of their house.  You were in possession of the knife, which Mr Chan described as a 'chopper'.  Mr Chan drove past the house towards Queen Street and then conducted another U-turn before parking a short distance away in order to observe the front of their house.  They could not see you.  Ms Joseph called 000 and requested police. Mr Chan also called his brother-in-law, Ricky Prasad, and asked him to come to the house to assist in case you were seen leaving the house.

10About 15 minutes later, Ricky Prasad arrived and drove to the front of
Ms Joseph’s and Mr Chan's house and he parked in the driveway. Ms joseph and Mr Chan followed behind Mr Prasad and parked their vehicle behind
his in the driveway.  As they approached the house all three observed you appear from the rear of the house and walk down the driveway.  You were carrying a black suitcase, a white plastic bag and a sound bar. Mr Prasad remained in the vehicle and spoke to you from inside the vehicle.  He gave you a ‘V’ energy drink and he continued to make conversation with you until the police arrived at about 1:25PM and arrested you. 

11At the time of the arrest police located a double-edged folding knife and a large meat cleaver in your jacket pocket.  The following items were stolen by you in the burglary and they were located at that time: a black suitcase containing a chopping knife, a grinding machine, a music box, headphones, shaving equipment and a plastic bag containing a sound bar, two passports, visa documents and a laptop. 

12Constable Paul Colosimo, who was present, noticed damage to the passenger side door of a vehicle SWP 951, consistent with someone attempting to forcefully open the door handle.  This is the vehicle that Mr Chan earlier observed you standing next to with the knife in your hand.  This is the basis of the tamper with motor vehicle charge.

13Crime scene officers attended at the address in Louise Street.  The point of entry to the house was the rear window where the flyscreen had been cut and the window forced open.  The house had been ransacked in most of the rooms.  Latent fingerprints were obtained from inside and two of the fingerprints were a match for your prints.  You were arrested, remanded in custody and you have been in custody ever since. 

14You were interviewed by police on 22 June. During the interview you acknowledged you had been at Louise Street.  You said you were looking for your mental health medication.  You said you saw a male known to you as Brock committing a burglary at 5 Louise Street and you chased him over the fence and then went inside the house to check whether anybody else was there.  You said you then started stacking the stolen property, which was outside, to move it out of the rain, and this is what you were doing when you were approached by the complainants and the police.  You said you carried the double-edge folding knife to fix your motor bike and your iPhone.  You said the meat cleaver was yours and you had been using it earlier at your sister's house to cut meat.  You denied stealing any cars or committing any petrol drive-offs.  You denied it was you in the footage from 27 Spencer Street, Thomastown at the Coles Express.

15You pleaded guilty at the committal mention in this matter, effectively at the earliest opportunity.  You have saved the community the time and cost of a trial and you have spared the witnesses the inconvenience of having to give evidence in this matter.  I accept your plea is indicative of a measure of remorse for your offending notwithstanding your denials in the interview. In coming to this view, I have taken into account the letter of apology you wrote in which you express an understanding of the seriousness of your offending and the need to address its underlying causes with the support of your family. 

16The car thefts and the petrol thefts are serious enough given your record but are matters which ordinarily would be heard summarily, a point made by Mr Raimondo, who appeared for the prosecution on the plea.  Even the aggravated burglary, given the intent alleged was to steal, could have been heard summarily. This was emphasised by the prosecutor, Mr Raimondo, in his remarks on the plea.

17However, in the context of your history, all the offending is certainly serious.  Disturbing aspects of this offending include that you were driving around impaired by drugs and that you entered residential premises affected by drugs, in possession of weapons.  Any aggravated burglary is a serious offence, but I have considered the various factors set out by the Court of Appeal in the case of Meyers in assessing this offending and I find it to be at the lower end of the spectrum of aggravated burglaries, certainly those that are dealt with in this court.  Your intent was to steal rather than to assault and nobody was in fact present in the house when you entered.  You were plainly significantly affected by drugs at the time and it does not seem that there was an iota of professionalism in your conduct.  This is exemplified by the fact that Mr Prasad was able to detain you at the scene by giving you an energy drink and engage you in conversation until the police arrived to arrest you.

18You were aged 25 at the time of the offending.  You are now 26.  You were born in Melbourne and you were brought up in Epping and Lalor.  You have two older sisters, Jade and Hayley, aged 31 and 28. Both work full-time.  Your father was employed as a mechanic and a truck driver and your mother worked in administration prior to being involved in a motor vehicle accident.  Your father has been caring for your mother full-time for the past four to five years.  You reported that both of your parents were heavy drinkers throughout your childhood, but you otherwise enjoyed a stable upbringing free from violence.  Your family remains supportive of you and you have received fortnightly visits from your parents in custody.  Prior to your remand you were living with your parents in Lalor and you were receiving a Newstart allowance.  Your parents recently purchased a property in Nagambie where they plan to live.  You plan to live there with them.  It will be a fresh start for you. 

19You completed your primary school education and Lalor East primary school and then you did Years 7 and 8 at Lalor Secondary College before leaving school to work as a tradesman.  You found school difficult.  You were suspended on a few occasions for misbehaviour and non-attendance, but you were never expelled.  Your first job was working in a fish market and since leaving school, despite your criminal history, you have managed to hold jobs in fields including roof tiling, plastering, fencing, spray-painting and panel beating.  You commenced a spray-painting apprenticeship three years ago in Thomastown, but you lost this job in 2015 because of your drug problems.  You would like to work as a labourer when you are released. 

20You have been involved in a number of motor vehicle collisions.  At the age of 12 you were present when your mother's friend was killed.  He was the driver in a motor vehicle collision in which your mother suffered significant injuries, including a broken back.  You were not injured.  In 2013 you were involved in a motorcycle collision when you were affected by drugs and you were driving at speed and you collided with a tree.  You suffered extensive injuries including a broken neck, which required surgery.  You spent a month in intensive care and seven months recovering at the Royal Melbourne Hospital.  You wore a halo-frame for two years between the ages of 18 and 20.

21You have since had symptoms said to be consistent with an acquired brain injury, including memory loss, but there is insufficient evidence to conclude that you have an acquired brain injury. 

22You had another motor bike accident in 2016 where you broke your left leg, requiring surgery to insert a metal rod. You were treated at the Alfred Hospital for just under a month. 

23You have significant substance abuse issues and some mental health issues.  You were diagnosed with Attention Deficit Hyperactivity Disorder and post-traumatic stress disorder in 2012, following the motor vehicle accident and you apparently engaged with the Child and Adolescent Mental Health Service until the age of 16. 

24Your real problem has been drugs.  You have had a long-term drug problem.  You report you commenced cannabis use at the age of nine, which escalated to daily use but the age of 15.  At 13 you were consuming alcohol and binge drinking until the age of 16.  You commenced using methamphetamines at the age of 18 and you report daily use since you were 20.  You also report regular use of GHB, and you have used heroin, Valium, Xanax, benzodiazepines and hallucinogens.  You were using ice heavily and GHB prior to your remand in relation to these matters.

25Currently you are prescribed 45 milligrams of Avanza to treat depression and you are also on methadone at the moment.  Ms Cidoni, the psychologist who assessed you in February this year and provided a report which was tendered on the plea, said that you suffer from unstable mood, post-traumatic stress disorder and co-morbid anxiety and she said in view of the presenting symptoms, you would experience prison as a greater burden than a person without this diagnosis.  I have taken this into account in sentencing you.

26You have prior convictions mainly for dishonesty and driving related offences and some violent offending.  You were incarcerated at the age of 19 for the first time when you received 12 months in a Youth Justice Centre and since you have served three terms of imprisonment.  You have also had two community-based dispositions, which you breached by further offending.  Your criminal history is indicative of a long-standing drug addiction and these offences occurred in the context of your drug and alcohol abuse.  You are currently at Fulham prison and you are employed as a food line billet.  You have also completed the Ice and ME course, receiving certificates from October last year.  You are also wait-listed for further drug and educational courses.  You self-referred to ACSO and attended an appointment for intake of drugs and alcohol on 2 October 2019 and you were referred to Odyssey House but you were unsuitable from admission from custody given your prior criminal history.

27As I have said, you have completed those courses and self-referred for drug rehabilitation whilst in custody.  This is to your credit and perhaps it indicates you have reached a realisation that you need to address your drug problems in order to stop the cycle of offending and imprisonment.  Ms Cidoni offers the view that your best chance is to undergo residential rehabilitation for substance abuse where you can also begin to address your underlying mental illness.  She says it would be helpful if this were mandated.  When I sought a corrections assessment report in this matter, I enquired about that, and the response is that residential drug treatment may be available through ACSO when you are released on a community correction order.

28One can only be guarded about your prospects of rehabilitation, given your lengthy criminal history and your entrenched drug problems.  Against that, you have family support and the opportunity for a fresh start in Nagambie, with the support from corrections.

29Your rehabilitation hinges on whether you can stay away from drugs and the lifestyle associated with it.

30The purposes for which a court may impose sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and protection of the community.  In sentencing you I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it and your personal circumstances.  In my view, considerations of general and specific deterrence are both important sentencing objectives in this case.  I must also seek to ensure as far as possible that you as an offender are rehabilitated and
reintegrated into society.  In order to achieve that objective, I intend to place you on a community corrections order when you have completed the sentence of imprisonment that I will impose.

31I note that in relation to sentence the prosecutor, Mr Raimondo, submitted a combination sentence of imprisonment and a community correction order was within range but that you had not reached at that time a sufficient period of imprisonment.  I agree with that and propose to impose some further period of imprisonment.  I have balanced the serious aspects of your offending against the mitigating matters that I have accepted.

32If you could stand up Mr McDonald. 

33On Charges 1 to 6 I have imposed an aggregate sentence.  In my view, those offences are all part of a series of offences of similar conduct.  The sentence is six months imprisonment on those charges.

34On Charge 7, that is the aggravated burglary,10 months imprisonment. 

35On Charge 8, being the theft of the items from the house, 6 months imprisonment. 

36On the summary offence of tampering with a motor vehicle, 7 days imprisonment.

37I order 2 months of the aggregate sentence for charges 1-6 is cumulative on the sentence for Charge 7.  So that makes 12 months.

38Of course, these sentences are fixed having regard to the fact that I intend to also impose a community correction order.  You have served 263 days in custody not including today.  Is that correct?

39MS MENEGAS:  Two hundred and sixty-five?

40HIS HONOUR:  Two six five.

41MS MENEGAS:  That's what I've got, Your Honour.

42HIS HONOUR:  Two hundred and sixty-five days and that period will be reckoned as pre-sentence detention and deducted from the gaol sentence that I have just imposed which means that what remains is 100 days that you must serve.  I am also imposing a community correction order

43In relation to Charges 1, 3 and 5 being theft of a motor vehicle, I am required to cancel or suspend any licence held by you and disqualify you from obtaining a licence for a period of time as specified and I propose to do that.  I have had regard in relation to this to the fact that part of the plea is that you were driving cars around affected by drugs and I propose to cancel and disqualify your licence for a period of 18 months.

44HIS HONOUR:  Now on the community correction order, which comes into force when you're released in 100 days, I am ordering that you perform 200 hours of unpaid community work over the period of 15 months.  So, it's a 15-month correction order.  There will be supervision and you will have to go to assessment and treatment for drug abuse as directed, mental health assessment as directed and offending behaviour programs as directed.  So, for15 months you are under supervision.  You will have all those conditions and you will have to do 200 hours community work as well.  I have added a punitive component.  I think that is justified on all the material here.  There are also mandatory conditions. 

45You cannot commit another offence.  You must obey all lawful directions from Corrections.  You must report to corrections in Seymour within two days of the order starting, that will be on release day in relation to this matter.  That will be Seymour Corrections because I understand you will be in Nagambie by then.  You cannot leave Victoria without getting permission to do so.  If you are going to change your working address or your living address you must tell corrections and you have to obey all lawful instructions.  If you do not do any of these things, then you have breached the order.  If you do not do your community work that is a breach.  If you do not do your supervision that is a breach.  That is also a new charge of contravening the order.  But the other aspect of it is then you are brought back before me.  The order can be cancelled, including vacating the prison sentences and you can be resentenced.  This is a combination order.  It all goes together. 

46So, if you did that, you breached the order, you would be back in gaol in relation to this, unless you had some extraordinary explanation for what went wrong.  All right, so you need to comply with this order.  Do you understand?  And if you re-offend you are just going to go back to gaol and that is what will happen.  You have got a bit of a chance in Nagambie.  You will have some support from Corrections.  You need to get off this cycle of drug abuse and offending and I am going to give you this chance after you have served another 100 days, Mr McDonald.  So, if you consent to that and sign that order perhaps Ms Menegas can take it back to you?

47MS MENEGAS:  Yes.  Thank you, Your Honour, if I can approach?

48HIS HONOUR:  Now, there is a disposal order sought for the knives?

49MS CAVKA:  Yes, Your Honour.

50HIS HONOUR:  I will make that order.

51MS CAVKA:  Thank you.

52HIS HONOUR:  Ms Cavka, are any other orders required?

53MS CAVKA:  6AAA

54HIS HONOUR:  Yes, 6AAA.   If not for your plea of guilty I would have given         you three years with a minimum of two years.

55MS CAVKA:  If Your Honour pleases.

56HIS HONOUR:  So that gives you perhaps some idea of what might happen if you breach and you will come back.  All right.  I have signed that. 

57(Orders signed and acknowledged.)

58HIS HONOUR:  No other orders required?

59MS CAVKA:  No, Your Honour.

60HIS HONOUR:  All right.  Thanks, both of you.  I will stand down until 11.  All right, Mr McDonald you understand all that?

61OFFENDER:  Yes.  I do.

62HIS HONOUR:  All right.  So you have got 100 days to go, a bit over three months and then you have got this community correction order to do for 15 months.  So, I think you understand all that and what will happen if you do not do it.

63OFFENDER:  I do.

64HIS HONOUR:  All right.  Thank you.  You can go back into custody now.

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