Director of Public Prosecutions v McDonald

[2019] VCC 332

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

AT MILDURA
CRIMINAL JURISDICTION

CR -18-02530

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON MCDONALD

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Mildura
DATE OF HEARING:	14 March 2019
DATE OF SENTENCE:	14 March 2019
CASE MAY BE CITED AS:	DPP v McDonald
MEDIUM NEUTRAL CITATION:	[2019] VCC 332

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Ms J. Willard	Valos Black & Associates

HIS HONOUR: 

1Jason Robert McDonald, you have pleaded guilty to one charge of theft and one charge of attempted armed robbery on indictment ending 786.  You have also pleaded guilty to three uplifted summary matters, being No.3, which is unlawful assault, No.7, which is proceeds of crime and No.8, which is failing to give proper information to police.  Insofar as Charge 8 is concerned, I will simply convict and discharge. 

2You are now 42 years of age.  You pleaded guilty at the earliest reasonable opportunity.  I accept that by reason of your plea of guilty, you have expressed remorse and indeed you have endeavoured to do so subsequently in any event.  You must also get the utilitarian benefit of that plea of guilty. 

3You do have a very significant prior history, having been incarcerated on a number of occasions.  One has to be careful when looking at your criminal history, because a lot of it involves breaching community-type orders and therefore looks like double-ups. 

4In this situation, your counsel made the submission that a community corrections order, together with a period of imprisonment, would be within range, but it is clear to me from your criminal history and the fact that you had never been able to comply with any sort of community disposition that the appropriate situation here is that of parole.  It is a matter between you and the Parole Board.  These sentencing remarks obviously will be forwarded to the Parole Board, together with the material that has been tendered on your behalf. 

5A summary of the offending, is that on 17 October 2018, you were at the Mildura RSL.  Your counsel explained to me how you got to Mildura on that day.  A 66 year old lady was also at the RSL and was approached by somebody to drop you in Hornsey Park.  She agreed and drove you there.  She placed her personal belongings, including her phone, in the centre console of the vehicle.  When she returned home, she saw that the phone was gone.  You obviously have admitted to it and had taken that phone during the course of that drive.  So there it just simply involved someone who was endeavouring to help you, being stolen from. 

6At approximately 4.50 pm, you approached a Chloe Crouch, who was sitting in her car - or mother's car in Hornsey Park.  You introduced yourself as Jason McDonald and behaved very strangely in relation to her.  I accept from your counsel that you were certainly drug affected during the course of all this. 
You told her that you wanted to "kill, injure, or sexually assault an unknown male", you asked her for ice, you were standing in the street yelling, "They'll be murder in Hornsey Park, it'll be red with blood".  She, I assume, is the lady to whom a subsequent victim ran. 

7Sometime later you approached a Mr Niaros, who was walking in Hornsby Park.  You told him your name was Mick Gatto and you needed somewhere to stay for the night.  You were drinking and mumbling and whispering incoherently.  You started approaching his neighbours and getting into arguments with them.  You told one neighbour that you were looking for ice and if you did not get it, you would start killing people.  Niaros believed you to be psychotic.  You asked him if you could stay the night in exchange for money, as you had nowhere else to go.  He felt sorry for you, so he agreed to let you stay at his house. 

8You had with you a backpack containing clothes, needles and wine.  The two of you smoked cannabis together and you again, started behaving strangely.  At some point in time you began talking about engaging in sex with young boys, which made Mr Niaros uncomfortable and he told you to "shut up".  That made you angry.  You both walked towards the front door.  As you got to the door, you have grabbed him by the throat and said, "I could kill you instantly".  You did not use your full strength to squeeze his throat, I accept that, but you used enough pressure to cause him pain and indeed red marks were seen later.

9I have no idea how big Mr Niaros is, but you are certainly not a small man. 
I have no doubt that that was a terrifying experience and you held him for about ten seconds.  You then followed him around the house and he was scared throughout that period that he was going to be sexually assaulted or killed by you.  You left, he put your belongings outside. 

10A couple of minutes later, you returned and began yelling at him, saying that you were going to kill him.  He told you your belongings were outside and told you to leave.  You kept trying to break into the house, yelling that you were going to kill Mr Niaros.  A lady across the road confirms that she heard you threatening to kill him. 

11You began to kick the front window of the house.  Did so a number of times, but it did not break.  He was terrified for his safety.  He ran from the house through the backdoor to a nearby milk bar, where he rang police.  That is where the red marks were observed.  That is an extremely terrifying experience and as
I indicated to your counsel during the course of the plea, you are very lucky that you were not charged with a far more serious offence than a summary assault.  But in any event, you were not. 

12Later on that evening, a Mr Brabham, who was walking in Hornsby Park towards a friend, Bradley Crouch. He heard someone approaching in the darkness and he saw you.  You were waving in his direction.  When you got within two metres of him, you pulled out a kitchen knife from your right sleeve.  You said to him, "Righto, I'm taking everything you've got.  Give me your money and your phone and get me onto the ice and choof."  That is Charge 2 of attempted robbery.

13Mr Brabham, who was obviously concerned for his safety, continued to walk and felt the point of a blade in his lower back.  He ran through the front door of Mr Brad Crouch's property, which may not be the Crouch that I thought it was, and he then rang the police.  Police arrived and arrested.  In your possession was found a health care card in the name of Corresec, and you gave the name of Corresec when asked your name by police.  That gives rise to the Summary Charges 7 and 8.

14In my view, it is a serious example of attempted armed robbery.  It is a person on his own, essentially defenceless and put in circumstances where he would have feared greatly for his safety.  It is not the situation of a 16 year old and sort of attempted armed robberies that go on with them, you are a big, mature man and I have no doubt that he was terrified.  That is the offence in this sentencing process which is going to carry by far the bulk of the imprisonment that has to be imposed.

15You were on two community corrections orders at the time of the offending.  And they will be dealt with, I dare say, in the Magistrates' Court at a later time.  The charge of theft carries ten years; attempted armed robbery, 20 years; unlawful assault, three months; deal with property suspected of being stolen, two years; and the state false name when requested, five penalty units.

16Your counsel submitted that a combination order would be within range and I have rejected that submission.  The offending, certainly the one where you terrified Mr Niaros and the attempted armed robbery, have to be regarded as serious, call for the application of general and specific deterrence, denunciation and punishment. 

17In your situation with your long criminal history, going back to the 1990s and this type of violence and conduct, it has reached a situation where the protection of the community has to become an important part of this sentencing process.  People are entitled to walk around without somebody accosting them and terrifying them in the way you did that night.  I do, however, take into account that the offending all occurred within a relatively short period of time and whilst it is no way mitigatory, at least your drug use and the bizarre behaviour puts it into a context. 

18There are no victim impact statements.

19I then look at matters personal to you in determining the length of the sentence of imprisonment which must be, in my view, imposed.  Tendered on your behalf were two reports by a psychologist, Carly Ferrari; neuropsychologist, Ms Vowells; also a letter from Forensicare; as well as certificates that you have completed courses in custody; and a letter from yourself, expressing your hopes for the future. 

20Obviously I take all those matters into account.  The circumstances of your mental health issues are, such as it is, difficult to ascertain exactly what the situation is. Ms Ferrari talks about depression and I accept that.  She talks about anxiety and I accept that.  You are a poor historian, which is understandable bearing in mind your background.  That background is a very unfortunate one and one unfortunately seen in these courts.

21You were born into circumstances where your mother was profoundly disabled.  Your father suicided when you wee ten and he circumstances were sad and disturbing indeed.  After the loss of your father you started associating with the wrong crowd as it has been put to me, commenced using drugs at a young age to cope with that grief.  You have a limited education.  You have got school refusals following your father's death and dropped out of school at the beginning of Year 8.

22Since then you have had various jobs that you have worked at.  You have spent period of time in prison and you essentially used drugs and abused yourself over an extended period of time.  I do not think there is any point in me going through the criminal history, it speaks for itself.

23It gets to the situation of what balance there is between how long you have to serve in custody and community protection and the other sentencing factors.  You have done well in prison on this occasion at least.  You have completed courses, you have done drug screens and I am satisfied that you, when you went into prison, were in a suicidal state, and spent something in the order of eight weeks in acute care because of that.  Your position now is that you are on medication and you appear stable.  Unfortunately what has always seemed to have occurred in the past is that when released you simply, and this is borne out by the reports, unable to cope within a community. 

24The only way, I think in your circumstances, that that can be addressed is by an extended period of parole with direct supervision whereby if you do start to go off track you can be dealt with and quickly.  The circumstances with community corrections orders, as I have just regaled your counsel with, are that the times involved, it is usually too late by the time anyone realises that it is not working well and with drugs and things like that, appointments are months away after you are released.

25The report of Lindsay Vowells, neuropsychologist, is an interesting one and clearly I have read and taken into account all the matters contained in Ferrari's report.  But she, when examined you way back in 2014, seemed to have the view that someone had previously diagnosed you with some form of personality disorder.  I do not seem to have the details relating to that but she then goes on and did a lot of neuropsychological testing on you.  I think her summary is probably the true situation in regards to your circumstances.

26She said in "Summary and Conclusions":

"The information gathered in test results obtained suggests that Mr McDonald is displaying the symptoms of an acquired brain injury, probably related to his acknowledged period of ongoing alcohol and substance abuse and the cumulative head injuries suffered in several motor vehicle accidents and a serious assault in 2005".

27I have read the detail of that. 

"His longstanding intelligence means that he has a good level of cognitive reserve and that this is not so apparent on first impressions and his limited early educational outcomes are not so apparent and important.  This is in addition to his newer psychiatrist disability, which seems to be related to his excessive drug abuse in his 20's and which is now apparently in remission because of the enforced abstinence".

28That being in custody I interpolate.  "However despite that remission there is still a level of inappropriate behaviours when under provocation".  I think skip a paragraph.  There is an amnesic syndrome which is understandable bearing in mind your drug abuse.

"His executive functions are mostly within the normal range and with a fair capacity for visio-spacial new learning and planning and organisation, which are probably important abilities for rehabilitation.  However he showed an incompetent and inefficient capacity in the areas of new learning, abstract reasoning, spontaneity and selective inhibition which would justify the diagnose of dysexecutive syndrome on a mild level".

29She said that was more concerning when using verbal stimuli.  She then went on later to say:

"His mood is apparent with ongoing depression with a longstanding level of overwhelming anxiety which does not seem to have responded so well in the treatment regimes undertaken in the past".

30I indicate that in the course of the plea you seem to have disengaged with professionals at a very early stage when in the community and it is really going to have to be up to you, when you are ultimately released, to engage and to endeavour to get the best you can from that.

31The prospects of your rehabilitation really are up to you.  There is a depressing sense of failure from the past but you are still only 42 years of age.  The prospects of your re-offending if you are released and use drugs are almost certain I would have thought.  I do, however, intend to give you an extended opportunity for parole and if you can maintain the way you have been able to deal with yourself in custody over the last six months for a proper period of a minimum term, then it may well be that the future holds some light for you.

32But in any event I have to sentence on what I have got before me.  Bearing in mind all the matters I have described, on Charge 1, that is theft on the indictment, three months.  On Charge 2 of attempted armed robbery, three years. 

33I direct that one month of the sentence imposed on Charge 1 be served cumulatively on the three years, giving three years and one month on the indictment.

34On the summary matters, on Charge 3, that is unlawful assault, two months.  On Charge 7 of proceeds of crime, one month concurrent.  On Charge 8, (indistinct) and discharged.  One month of the sentence imposed on summary matter 1, to be served cumulatively upon the indictment. 

35That gives a total effective sentence of three years and two months.  I order a minimum term of two years before becoming eligible for parole and I direct that 178 days reckoned as having been served under this sentence.

36But for your plea of guilty and your cooperation with the police in this matter I say that, pursuant to s.6AAA, but for what I have just described, you would have been given four and a half with a three.  Are there any other orders I have to make?  All right, do you want to talk to your client?

37MS WILLARD:  Yes thank you, Your Honour.

38HIS HONOUR:  No other orders?  No.  the 464 was already taken.

39MR O'DOHERTY:  The 6AAA was.  Four with a three.

40HIS HONOUR:  No, four and a half with a three.

41MS WILLARD:  Four and a half with three.

42HIS HONOUR:  Yes.  All right, so you can explain all that to him?

43MS WILLARD:  Yes.

44HIS HONOUR:  All right.  You can take him back now, you can pop over and see him yourself.

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