Director of Public Prosecutions v McDougall

[2013] VCC 931

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-01515

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW CHARLES MCDOUGALL

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 June 2013
CASE MAY BE CITED AS:	DPP v McDougall
MEDIUM NEUTRAL CITATION:	[2013] VCC 931

REASONS FOR SENTENCE
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Subject:  
Catchwords:            
Legislation Cited:    
Cases Cited:            
Sentence:                

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APPEARANCES:	Counsel	Solicitors
For the DPP (Plea)                  (Sentence)	Ms D. Karamicov Ms T. Crvenkovic	Office of Public Prosecutions
For the Accused	Ms G. Morgan

HIS HONOUR:

1       Andrew Charles McDougall, you have pleaded guilty to one charge of aggravated burglary, one charge of damaging property, one charge of recklessly causing injury and one charge of recklessly causing serious injury.  Those crimes carry maximum penalties of 25 years, ten years, five years and 15 years respectively.

2       You have also pleaded guilty to five uplifted charges of breaching an intervention order, which carries a maximum penalty of two years, two charges of unlawful assault, which carries a penalty of three months, and one charge of wilful damage, which carries a penalty of six months.

3       You have pleaded guilty to a settled indictment and have acknowledged responsibility insofar as the summary matters are concerned.  You are 35 years of age.  I accept within your capacity you have shown appropriate remorse and you must of course get the utilitarian benefit of that plea of guilty.

4       You do have a significant number of prior convictions and findings of guilt.  They are all pretty much for the same sort of summary offending as this.  I think what has happened is that you have clearly never received any form of therapeutic disposition and magistrates, in response to these intervention orders, have imposed short suspended sentences, one of which was actually served, and other forms of disposition.  There is no sign of a community-based order or anything along those lines.  You have a history of what could be euphemistically described as difficulties in relationships.

5       The charges before me, including the breach of intervention orders, occurred in May 2011, December 2011, March 2012 on the 15th, 20th and 27th.  There is a subsequent rolled up breach of intervention order occurring on 16 May which involved letters sent by you once you were in fact in custody.

6       Firstly, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to comply with a request for such a sample being a scraping of the mouth, police may use reasonable force to take it from you.  That order is made and handed down.

7       You and the victim Ms Bass had been in a relationship, having met in August 2010.  You commenced and did reside for a period of time together in 2011.  After a short time, you moved out of the house as you had become violent.  A full family violence intervention order was taken out against you on 17 November 2011, which provided that you effectively were not to go near her.

8       On 27 March 2012, she was at home with her son who is 21, her daughter who is 15 and her niece who is 21 and another friend Mr Goodwin.  Mr Goodwin was apparently there as support to her.  On that night, Ms Bass and Mr Goodwin decided they would watch a movie.  At about 9 pm, the children left and then came back but a couple of minutes after they had left the house, you smashed the front window using a metal tyre lever, jumped through the broken window and entered the lounge room.  That gives rise to Charge 1 of aggravated burglary and Charge 2 of damaging property.

9       As you jumped through the window, you held a tyre lever and swung it.  Ms Bass and Mr Goodwin were both seated on the couch in the lounge room and they were both hit by the tyre lever.  You said something along the lines of "how dare you be with my woman".  You swung the tyre lever, which was approximately two and a half to three feet long, with a vertical motion.  Ms Bass was hit to her left cheek and arm region of her body and Mr Goodwin was hit several times to the head.  He put his left arm up to defend himself and was hit in the arm by you.  He said he could feel blood running down his head.  He attempted to shield Ms Bass and eventually got hold of the lever.  Ms Bass ran out of the lounge room and out of the house and raised the attention of a neighbour.  Mr Goodwin remained in the house struggling with you.  He kept hold of the tyre lever and wrestling continued.

10      Ultimately, Mr Goodwin forced you into a corner near the television and got hold of the tyre lever with both hands.  He managed to swing you into the TV.  You continued to be aggressive and were trying to fight back.  You also continued to rant about Mr Goodwin's relationship with "his girlfriend".  Further struggling occurred.

11      The others returned to the house from the shops.  Mr Goodwin asked Jessie Bass for assistance and told the girls to call the police.  Jessie Bass started punching you to the head and shoulders while Mr Goodwin was still holding onto the lever and had you blocked in a corner.  You began screaming and you were apparently, as believed by Mr Goodwin, getting your strength back.

12      You were then hit by Jessie Bass over the head with several objects and it appears that you lost consciousness and fell to the floor and were convulsing.  You stopped that and began moaning and asking for help.  Mr Goodwin kept hold of the lever.  You tried to get up but in any event police eventually arrived and arrested you.  At that stage, Mr Goodwin felt dizzy and in pain.

13      Mr Goodwin, Ms Bass and yourself were all taken to hospital.  Ms Bass received a compression injury to her left arm and a swollen, bruised and cut left check.  Her arm also had a cut about two centimetres long.  That gives rise to the charge of recklessly causing injury.

14      Mr Goodwin received a cut to the left side of his forehead that was about two and a half centimetres long and required five stitches, and a cut the same length in his hairline again on the left side and above his forehead that also required stitches.  He had received a cut on the top of his nose between his eyes that was treated with glue.  He received a broken left hand and some further cuts and scratches to his face, arms and legs and two broken upper teeth.  That gives rise to Charge 4 of recklessly causing serious injury.

15      You were not clear or coherent when you were speaking to police and continued to go in and out of consciousness.  You were taken to Casey Hospital, where you basically said that you had caught your girlfriend in a compromising situation.  In any event, the intervention order was in place so this contravenes that as well.  As I have indicated, subsequently you sent letters to her from gaol which again amount to a contravention.

16      The other contraventions that I will be dealing with involve, for the main part, you approaching the premises where she was and arguments ensuing and on one or two occasions her being assaulted.  That gives rise to the unlawful assault charges.  On one occasion, you picked up a wheelie bin and threw it at the victim, causing the rear windscreen to shatter.  So there is a number of occasions when the intervention order is in place, where there have been altercations giving rise to breaches and indeed on two situations assault and on other situations, lawful damage being the damage to the car.  As indicated during the course of the plea with the summary matters, I propose to give an aggregate sentence.

17      The letters that you sent from the gaol were said to display a degree of remorse and I think that is right, though there does also seem to be a degree of self-justification.  Overall, the offending requires the application of general and specific deterrence, as well as denunciation and appropriate punishment.  It is a serious aggravated burglary to enter with a tyre lever, if that is what it was, and to then physically attack people.  A custodial sentence of significant proportions was inevitable and your counsel very sensibly agreed with that proposition and her submissions were based upon, for the reasons I will outline in a moment, you being a candidate really for the parole board.

18      Firstly, you yourself received injuries and they involved a broken arm and various other injuries, one to your knee.  I take those into account because they did cause you difficulty in your first time in incarceration and therefore are to be applied in mitigation.  The case of Barci and Asling was put before me and whilst I understand the principles involved, you do not get anywhere near the level of Barci.

19      The other injuries that really arise from this are not just the physical ones but they are the ongoing aspects that are described in the two victim impact statements that were read out in court this morning, one from the first victim's daughter who explains the circumstances and the feelings that she had about the assault and one also from the victim.  It is not my task to, nor could it be, to sentence for an entire course of conduct, I must simply sentence on the basis of what occurred.  I simply say this, that it was very violent, very frightening, and obviously had a great effect, the attack that you launched upon these people.  I take those victim impact statements very much into account.

20      Tendered on your behalf were references from a person who you had worked with and there is a letter from your parents explaining various aspects of your life and another one from your cousin.  It is clear from those that you have had difficulty in your life and I will be dealing with that in more detail when I refer to the psychological and neuropsychological assessments.  What is of importance is that you do have family support, albeit longsuffering, and that augurs well for your rehabilitation.  Your parents are here today and on the other days, as I understand it, there were cousins and a brother.  That is a matter that the parole board can take into account when they consider your ultimate release.

21      Since you have been in gaol, and this is very much to your credit, you have availed yourself well of the opportunities.  You having been on remand, I fully appreciate the amount of programs available is limited, but I think it I fair to say as your counsel did that you have done every program in gaol that was available to you.  That indicates that you have taken a sensible approach to this and are endeavouring, at least, to facilitate your rehabilitation.

22      There were two reports, one from Mr Bob Ives who is well known to me, he is a psychologist, and one from a Dr Vowels, who is a neuropsychologist.  It is difficult to deal with these because in one sense they should be read in tandem but I will do the best I can with that.

23      Firstly, Dr Vowels, having given you a thorough examination as to cognitive difficulties, her being a neuropsychologist, has come up with an IQ of 71.  That is very low and, perhaps not these days, but certainly not that long ago would have enabled you to be classified as having an intellectual disability.  I am very much aware of the decision of Muldrock and the principles in Verdins and even though Mr Ives had you at 74 with a slightly less rigorous form of testing, I think that you have to be given the benefit of the doubt insofar as moral culpability is concerned and it is reduced to a degree.  I think also that it is clear with intellectually disabled people - that is effectively what you are in that sense - find it harder in gaol.  Also should moderate to a degree general and specific deterrence.

24      The neuropsychological report, which I will deal with in very brief compass, says that on the story you told - I will be dealing with this more when I deal with Mr Ives' report - you have led a fairly isolated and asocial life, with few sources of psychosocial support save, as described in the report, your "loyal parents" and little in your life which could be considered satisfying or rewarding.  It goes, to a certain extent, through your work history and points out that your attempts to have relationships with women have ended in a series of disasters and that you seem, at the face of it at least, to have no capacity to learn from experience or to prevent the unacceptable behaviour once it starts to occur.

25      The further aspects of that report were that she said:

"It appears that from a fairly comprehensive sampling of cognitive abilities using tests with established sensitivity and reliability to identify neuropsychological abnormalities, that Mr McDougall is currently demonstrating several significant cognitive disabilities.  The principle of these would be a developmental mid-intellectual disability of unknown cause, but the possibility of acquired brain impairment in asymmetrical distribution is high it seems, from his account of several head injuries that were always on the left side of his head which was struck or landed on.  Some aspects of his poorer memory are consistent with alcohol related brain impairment.  His ABI - that is, acquired brain injury - problems would be best described with the diagnosis of dis-executive syndrome, which refers to the frontal lobes, with greatest problems being persevering, organic inflexibility, impulsivity and compromise self-monitoring, overall leading to abnormal problem solving and decision making."

26      She pointed out that these matters would have all contributed to your offending not only in this particular situation but overall.  That report will remain on file and will of course be sent to the parole board.  The other report is that of Mr Ives who is, as I say, known to me.

27      Your father is a diesel mechanic and your mother manages the town supermarket in Tocumwal.  You have a brother who is single and was at court as I understand it the other day.  You have a sister who is in a long-term relationship who lives in Adelaide.

28      Insofar as your childhood was concerned, you exhibited from a very early age a "short fuse", a fierce temper and a capacity to engage in temper tantrums.  You were, when small, aggressive and belligerent when responding to bullies.  That also extended to other aspects of your life, particularly when you were frustrated.

29      It would seem that from a young age you had trouble at school.  Because of your temper, you had difficulties with sporting teams and all sorts of things arose.  It is clear that those difficulties were from a very young age and may have been exacerbated by, but we will deal with that in a moment, some problems that arose later.

30      You endeavoured to work.  You have had various jobs.  You came to the city but missed the country life of Tocumwal and returned.  By the time you returned to Tocumwal, around about 2004 when you went to live with your parents, you were now seriously emotionally unstable.  At that time, you suffered from very severe depression and anxiety.

31      Unfortunately, as is pointed out by Dr Ives and by other material before me, you have something of a paranoia of medication and you would not visit a GP or follow your parents' advice to seek professional psychiatric assistance.  You would have displays of great anger, whether you were intoxicated or not.  I accept that on certain occasions intoxication must have played a significant part in all this, but it is clear from other material that you can behave in that way even when not intoxicated.

32      Your parents have endeavoured to assist you over a very long period of time.  It has got to the stage where on occasions your smashing of furniture and aggressive conduct has left them frightened and left them in a situation where they even had to take out intervention orders against their own child.  It is to be hoped that in more recent times and as the future progresses, that you will come to understand and fully appreciate that your condition must be dealt with as you cannot expect to rely upon the indulgences of family members forever.

33      When spoken to, your mother described essentially the matters that I have described.  She went on to say that she believes that your displays of anger are effectively outside of your control.  That, from what she has seen, that you have subsequently displayed great remorse and sorrow and often weep and feel guilt, but as soon as you became frustrated again, your aggressiveness would return to the fore.  She describes your unwillingness since you were younger to have treatment or to become involved in any form of medication, which you were afraid might turn you into a zombie.

34      I do not think it is necessary for me to go through the details of all the prior history.  They are all indicative of just what I have been talking about, a very short wick, as it appears to me, and an inability to control your anger once you feel affronted or frustrated.  Again it was pointed out by Mr Ives that there has just been no treatment in the past neither from courts of your own volition or from anywhere else.  It simply has to occur and that is why these matters will be given to the parole board with what I consider to be ample opportunity to deal with them.

35      The high levels of anxiety and depression that you have shown in the past have resulted in you using alcohol and drugs as a temporary form of self-medication.  That never works.

36      Mr Ives in the end said, describing your original difficulties, that:

"It seems most likely that his condition is essentially a matter of 1) a genetic vulnerability relating to difficulties of anger, arousal and impulse control; 2) supplementary to this condition, he experiences high levels of anxiety and depression; 3) possibly exacerbated by traumatic head injuries; 4) further exacerbated by alcohol and drug abuse; 5) rendered all the more serious by his limited intelligence, lack of insight and poor capacity to resolve problems 5) further complicated by his related lifestyle; and 6) sustained by his refusal to engage in serious long-term treatment."

37      That is the problem and that is what has to be dealt with.  There are programs available and there are programs that can be put into place by the parole board and it is to be hoped that you will comply with all that and make yourself a worthwhile member of the community.

38      The prospects of rehabilitation have come down to being very much up to yourself and the risk of you re-offending is dependant upon that rehabilitation.  I have taken the view that is a situation where a, as I have indicated to counsel, longer than what might otherwise be the case opportunity for parole can be offered.

39      However, having said all that, I mean if one takes into account the prior history, it has to be regarded as serious offending and the sentence imposed has to be a significant one.  The range that was given by the Crown is I think a sensible one.  Because of all the matters that I have outlined, I think that you fall very much at the lower end of that range but nevertheless within it.

40      Accordingly, you are sentenced as follows and there is accumulation here because obviously there are different victims and different styles and times of offending.

41      On the charge of aggravated burglary, you are sentenced to be imprisoned for a period of two years and six months. 

42      On the charge of criminal damage, one month. 

43      On the charge of recklessly causing injury, which carries a maximum of five years, to Ms Bass, nine months. 

44      On the charge of recklessly causing serious injury to Mr Goodwin, two years.

45      I direct that one year of the sentence imposed on Count 4 and four months of the sentence imposed on Count 3 be served cumulatively upon each other and upon the sentence imposed on Count 1.

46      On the summary matters, I direct that you serve an aggregate period of eight months and I direct that four months of that be served upon the already accumulated matters on the indictment.  That gives an effective head sentence of four years and two months and I direct that you serve a period of 24 months before becoming eligible for parole.

47      I direct that 451 days of this sentence be reckoned as having been served.

48 So that you understand the benefit of your plea of guilty and your ultimate cooperation, pursuant to s.6AAA of the Sentencing Act, I say that but for your plea of guilty you would have been sentenced to be imprisoned for a period of six years with a minimum of four.

49      All right, now are there any other - firstly, just check the arithmetic for me ladies, if you would?  I am pretty sure it is right.  I will just repeat it.  Count 1, two years, six months.  You can sit down now, Mr McDougall.  Count 1, two years, six months.  Count 2, one month.  Count 3, nine months.  Count 4, two years.  12 months of Count 4 and four months of Count 3 cumulative upon each other and upon the two years and six months.  That gets you to three years and ten months.  The aggregate eight months on all the summary matters, four months of that cumulative upon the three years and ten months imposed upon the indictment and directly associated summary matter - sorry, upon the indictment, giving an effective head sentence of four years and two months.  24 months is the minimum term, 451 days served.  Are you okay with that?

50      MS MORGAN:  Yes, Your Honour.  One minor matter at the very commencement of the sentence and that was in relation to the offence date in relation to the first of the summary matters.  Your Honour said offending in May 2011.  That charge was in fact referrable to November 2011.  The original date did refer to the May date.  We used that offence but amended the date.

51      HIS HONOUR:  Well, what I have got is an unlawful assault between 1 May and 31 May 2011?

52      MS MORGAN:  I think what has happened, Your Honour, is that the amendment was made - - -

53      HIS HONOUR:  Does it matter?

54      MS MORGAN:  No, it doesn't.

55      HIS HONOUR:  The end result is going to be the same no matter what.

56      MS MORGAN:  Simply for the record, Your Honour, but that's - I have no great difficulty with that.

57      HIS HONOUR:  Well, what I have got has not been amended.

58      MS MORGAN:  Yes and I think that is because it was amended in the Magistrates' Court and then Your Honour has - we've been sent different briefs.

59      HIS HONOUR:  Well, it was not - I mean it almost went in his favour because it was so out of time with it.  It was not part of the direct series.

60      MS MORGAN:  Yes.

61      HIS HONOUR:  So it certainly has not affected him adversely.

62      MS MORGAN:  Thank you, Your Honour.

63      HIS HONOUR:  All right.  10.30.

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