Director of Public Prosecutions v McDonald
[2019] VCC 123
•11 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
KOORI COURT
Case No. CR-17-02445
Indictment No. C1711070.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES McDONALD |
‑‑‑
JUDGE: | HER HONOUR JUDGE CONDON | |
WHERE HELD: | Melbourne | |
DATES OF PLEA HEARING: | 18 December 2018 and 6 February 2019 | |
DATE OF SENTENCE: | 11 February 2019 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v McDonald | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 123 | |
REASONS FOR SENTENCE
‑‑‑
Subject: CRIMINAL LAW
Catchwords: Sentence – burglary – plea of guilty
Sentence: Total effective sentence of five months’ imprisonment and a Community
Correction Order of two years
Section 6AAA declaration: four years’ imprisonment with a non-parole
period of two years
‑‑‑
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P Pickering | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr A Malik | Victorian Aboriginal Legal Service (VALS) |
1 HER HONOUR: James McDonald, you have pleaded guilty before me to two charges of theft and one charge of burglary.
2 Exhibit A on the plea in mitigation was th e Summary of Prosecution Opening. I incorporate that document into my Reasons for Sentence. However, I will briefly summarise the offending that has brought you before the Court.
3 At the time of these offences you were 24 years of age. You are now 26.
4 At approximately 12:35 am on 28 July 2016, a grey/silver-coloured Subaru station wagon, registration YCZ 947, belonging to Ronald Elliott, was stolen by you and your co-offenders in this matter, Benjamin Aslin, Timothy Irwin and Jack Smith. The Subaru was stolen from East End Panels, McMahon Street, Traralgon. This relates to Charge 2 on the Indictment, being a charge of theft.
5 At approximately 1:54am, also on 28 July, a stolen white Ford Courier and the stolen Subaru were driven to the United Service Station in York Street, Sale. The Ford Courier was reversed through the front glass doors, dislodging an automatic teller machine (ATM). Three males entered the service station and lifted up the ATM, placing it in the rear of the Subaru before leaving the scene. The ATM contained $16,430 cash. This activity relates to Charges 3 and 4 on Indictment being theft and burglary.
6 You and your co-offenders then drove to the Sale-Maffra Road, where the stolen white Ford Courier was dumped. You used your mobile telephone to communicate with one another during this offending. You and your co-offenders then drove the stolen Subaru containing the stolen ATM to Higgs Road, Drouin. At this location, the ATM was jemmied and smashed open, and access to the cash gained therein.
7 On 3 January 2017, you were charged with these offences. Prior to the committal hearing of the matter, an offer to plead guilty to the charges now before me was made through your legal representatives. This plea offer was formally made on 23 April 2017. The offer was rejected by the prosecution the next day. In the circumstances, I regard your plea of guilty as one made at the earliest available opportunity and one consistent with remorse and a desire to facilitate the administration of justice.
8 Before me you admitted your prior criminal history.
9 There are a number of relevant matters for the sentencing exercise today. In particular, on 27 June 2016, you appeared before the Melbourne Magistrates' Court for charges of burglary, recklessly cause injury, unlawful assault and theft. As part of that disposition, you were released pursuant to a Community Correction Order (CCO) for 12-months. Furthermore, there was a residential rehabilitation component of that order which required you to attend at Wulgunggo Ngalu.
10 Almost one month later, you were involved in the commission of this serious offending. The fact that you were on a Community Correction Order at the time of these offences thus constitutes a fact in aggravation. Indeed, you have received the benefit of at least three CCOs over the past six years. On each occasion, you have failed to take advantage of the opportunity provided to you to address your longstanding drug addiction.
11 In July 2013, you were placed on a CCO, although I note that it was absent any therapeutic conditions. However, in May of the following year, in 2014, you were placed on another CCO with therapeutic conditions attached. In April of 2015 that order was subject to breach proceedings and you were resentenced to 4 months’ imprisonment suspended for 12 months. In June 2016, as already noted, you were placed on a 12-month CCO with therapeutic conditions attached.
12 You have made a number of voluntary attempts to address your longstanding drug addiction. In December of 2015 you were admitted to Odyssey House but unfortunately you lasted only 1 week. In October of 2017 you were bailed to reside at Odyssey, where you stayed for approximately 2 months. Furthermore, in the previous year, you admitted yourself into the drug and alcohol treatment centre at Bunjilwarra in September of 2016, and remained there for about 6 weeks, leaving on 16 November 2016.
13 While it is to your credit that those endeavours have been made by you outside any court ordered disposition, your drug addiction and its attendant problems endures.
14 Indeed, much of the thrust of the plea in mitigation on your behalf related to the fact that you have reached a crossroads. It was acknowledged on your behalf, realistically I might add, that you do have a pattern of breaching therapeutic-based dispositions designed to address your drug problem.
15 However, it was contended on the plea that your circumstances have significantly changed by dint of the following:
(a)you have the benefit of family support, in particular your mother, who I note was present at the plea in support of you;
(b)you are in a stable and supportive relationship with Sabrina Perduv, who was also present on the plea in support of you. Unlike your previous girlfriend, she is not a drug user; and
(c)You have spent a substantial period of time in custody, unrelated to these matters, in which you have had ample time for reflection. Your Counsel relied upon the totality principle, and submitted that I should take into account that period of time you have served in custody in arriving at the appropriate disposition.
16 On 29 March 2017 you were remanded in custody in respect of the unrelated matters I have previously referred to. You were released on bail by the Magistrates' Court on 25 October 2017 and entered residential rehabilitation at Odyssey House. You were subsequently sentenced on 18 December 2017 at Melbourne Magistrates' Court to a period of 224 days imprisonment (declared as time already served) for a large consolidation of charges. I note that on 1 December 2017, trial bail was fixed in respect of this matter before me, also with a condition that you reside at Odyssey House. I am told that you remained there until late December 2017.
17 On 17 September 2018 you were remanded in custody in relation to a raft of offences, including burglary and theft. By your own motion, your bail was revoked in relation to this matter on 18 September 2018, and you have remained in custody ever since 17 September. I also note there was some delay in the disposition of these matters. None of that delay was attributed to you, or any of your co accused. I take that into account in arriving at my ultimate disposition.
18 It was contended on your behalf that you have used your time in custody well. You have remained drug free and participated in a number of courses and worked, up until recently, as a billet at Melbourne Remand Centre. You have recently been moved to Ravenhall Prison and intend to obtain work there.
19 Exhibit 3 on the plea was a letter written by you to the Court and the Elders as part of the sentencing conversation. The letter contains an apology to your family and friends, and the community of Aboriginal people which you have let down and disrespected. The impression that I get from that letter, and from your involvement in the sentencing conversation (a matter which I take into account in your favour), is that you have reached the point of having some insight into the debilitating nature of your longstanding drug addiction.
20 In the course of that letter you refer to the most recent admission into Odyssey House in October of 2017. You were only there for two months, but state that "in that time you learnt a lot about ownership and honesty". Whilst you were there last year, you experienced a health scare. You had previously been diagnosed with a benign tumour, which was removed from your bowel region. As a consequence of a scan at Odyssey House, there was some concern raised that that tumour had re-appeared. However, I was told on the plea that between December 2017 and June 2018 the question of the recurrence of the tumour, (and whether or not it was benign or malignant) was unresolved
21 After leaving Odyssey House in late December 2017, you fell prey to your methamphetamine addiction and re-offended. As a consequence, you are appearing on 14 February 2019 at the Ringwood Magistrates' Court for a consolidated plea hearing in relation to these matters.
22 The ultimate submission was made on your behalf, was that despite your significant prior criminal history, you were an appropriate candidate for a combined disposition. In other words, that despite failing to take advantage of the previous opportunities afforded to you, you should be given another opportunity pursuant to a Community Correction Order to address your longstanding drug addiction.
23 In the course of the plea, discussion was had about you returning to Odyssey House rehabilitation centre. This was in the context of an ultimately unsuccessful bail application, made on your behalf. As I indicated to your counsel in the course of the bail application, should there be provision available at Odyssey House, I am minded to incorporate a residential rehabilitation component to your ultimate release pursuant to a Community Correction Order.
24 Exhibit 4 on the plea in mitigation was a letter I received from Odyssey House dated 1 February 2019. This letter confirms that you are suitable for admission into their residential rehabilitation program and that they have a space available for you, commencing next week, on 18 February.
25 I now turn to your personal history.
26 As already noted, you are now 26 years of age. You were born in Traralgon. You are one four children, with two older sisters and a younger brother. Your Aboriginality is from your paternal side, as your father is a Gunditjmara man.
27 Your upbringing was dysfunctional and chaotic. Your father was an alcoholic with a gambling problem. Your mother was subjected to domestic violence throughout the relationship. When you were eight, your family relocated to Perth for your father's employment in the construction industry. Your older sister, Jess, was 13 at the time and deteriorated into a lifestyle of heroin abuse and prostitution. The family then returned to Melbourne after one year, to separate her from that environment.
28 When you were twelve, your mother took you and your siblings to Queensland to escape from your increasingly violent father. Life in Queensland was difficult, with your mother struggling financially as a single mother. The family then relocated back to Victoria and you lived in the Northern suburbs of Melbourne.
29 As for your education, you completed Year 10, but left school during Year 11. You completed an AFL sports-ready traineeship, and you were employed between 16 and 18 years of age in a Golf Course Pro Shop. You have been employed as a steel-fixer in the construction industry.
30 As has already been referred to, you have a longstanding drug problem. You began using amphetamine and ecstasy at the age of seventeen. You were also introduced to methamphetamine around the same time, and began using this insidious drug daily from the age of eighteen. As already observed, various dispositions have been made in your favour in order to address this longstanding drug addiction, however none to date have been successful.
31 The basic purposes for which a court may impose a sentence are punishment; general deterrence; specific deterrence; rehabilitation; denunciation and protection of the community. In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim, if any.
32 I am required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, as far as possible, offenders are rehabilitated and re-integrated into society.
33 In the course of the sentencing conversation, you acknowledged to the court that this was probably your last chance. Let me make something very clear to you, Mr McDonald. This is your last chance. The courts have, on a number of occasions, released you pursuant to community-based therapeutic dispositions in order to assist you to rid yourself of your drug addiction. Given all the circumstances in your case, I am minded to provide you with that final opportunity. Hopefully you will be able to harness your intention to change you so eloquently described in your letter to the Court.
34 Please stand, Mr McDonald.
35 In relation to Charge 2 on the Indictment, being a charge of theft, I convict you and sentence you to a term of imprisonment of five (5) months.
36 In relation to Charge 3, being a charge of burglary, I convict you and sentence you to a term of imprisonment of five (5) months.
37 I order that the sentences imposed upon Charges 2 and 3 be served wholly concurrently making for a total effective sentence of five (5) months’ imprisonment.
38 In relation to Charge 4, being a charge of theft, I convict you and impose a Community Correction Order of two (2) years with the following conditions:
· That you report to Box Hill Corrections within two working days of your release from custody and attend supervision appointments with them;
· That you participate in programs to reduce the risk of you reoffending;
· That you have treatment and rehabilitation for your mental health; and
· A drug treatment and rehabilitation condition, including that you reside at Odyssey House for residential rehabilitation, for a period they deem necessary. As I already indicated, I am told that Odyssey house have a place for you from the 18 February 2019.
· I also require you to appear before me for judicial monitoring, to update me on your progress under the Order, on the 10 April 2019 at 9:30am.
39 Pursuant to s18 (4) of The Sentencing Act 1991 (Vic), I declare 146 days' pre-sentence detention and I order that such declaration be noted in the records of the Court.
40 Pursuant to s6AAA of the Sentencing Act, were it not for your pleas of guilty I would have imposed a sentence of four (4) years' imprisonment with a non-parole period of two (2) years.
41 In relation to Charge 2, being theft of a motor vehicle, and pursuant to s89 Sentencing Act, I order that all driver licences held by you be cancelled and you are disqualified from driving for a period of 12 months from today's date.
42 I decline to grant the orders for compensation sought by the Prosecution in relation to the Accused (and his co-accused).
43 You may be seated, Mr McDonald. You may be seated. Now, just before I proceed to arrange for the Order to be brought to you, Mr McDonald. I just have to explain a couple of things. Now, you have been subject to a Community Corrections Order before, as we discussed at the plea. And you're aware of the consequences of a breach of the Order, aren't you?
44 ACCUSED: Yes.
45 HER HONOUR: And you're aware that you can be brought back before me, for resentencing, should you breach the order?
46 ACCUSED: Yes.
47 HER HONOUR: And given that, you consent to being - have the order imposed upon you for that two year period?
48 ACCUSED: Yes.
49 HER HONOUR: All right, very well. Yes, we'll I'll arrange for - would you, Mr Malik, would you like to assist Mr McDonald.
50 MR MALIK: Yes, Your Honour. Thank you, Your Honour.
51 HER HONOUR: Yes. All right, Mr Pickering.
52 MR PICKERING: Just two matters. One is that there is also a disposal order which is sought.
53 HER HONOUR: Yes.
54 MR PICKERING: Which is applicable, for that matter, to all three offenders.
55 HER HONOUR: To all three.
56 MR PICKERING: So that's the first thing. And the second thing, just as a matter of housekeeping, does Your Honour require an appearance by the prosecution for the judicial monitoring?
57 HER HONOUR: No.
58 MR PICKERING: Some do, some don't.
59 HER HONOUR: No, not required.
60 MR PICKERING: As Your Honour pleases.
61 HER HONOUR: Insofar, well as I make the disposal orders as sought.
62 MR PICKERING: And forfeiture, I'm sorry.
63 HER HONOUR: And forfeiture. Again, can we physically do them next Monday, with the other three, or do you want me to do them on this occasion, as well.
64 MR PICKERING: Well, the options are either do them all together, Your Honour, or have separate orders, because they're separate dates.
65 HER HONOUR: They're separate days, yes. Well, I'm happy to sign the orders in chambers, and - all right?
66 MR PICKERING: As Your Honour pleases.
67 HER HONOUR: Very well. All right, yes, thank you. We'll adjourn now to 10:30.
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