Director of Public Prosecutions v McDowall

[2014] VCC 891

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00743

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHILLIP MCDOWALL

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2014
DATE OF SENTENCE:	5 June 2014
CASE MAY BE CITED AS:	DPP v McDowall
MEDIUM NEUTRAL CITATION:	[2014] VCC 891

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 M. El-Asmar	Office of Public Prosecutions
For the Offender	Ms E. King	Victoria Legal Aid

HIS HONOUR:

1Phillip McDowall, you have been dealt a rough a set of cards in your life as anyone I have had to deal with.  You are now 48.  By your twenties, or thereabouts, you were an alcoholic.  In 2009 you drove your car into a tree at high speed in an attempt at ending your life.  As a consequence, you sustained a serious brain injury.  Your cognitive capacity thereafter has been significantly compromised.  You live in supported accommodation.  Your finances are managed by State Trustees, and I will say more about that shortly.  The year after your brain injury, you were diagnosed with schizophrenia.  This debilitating disease is managed at the moment by fortnightly depot injections. 

2If all that is not enough, your family has the dreadful genetic illness of Huntington's disease.  Tragically, your father and, more recently, your twin brother have died from that disease.  Whether you have that disease yourself will be made known to you very shortly.  Sadly, you are displaying the signs and symptoms that indicate that you too have Huntington's disease.  This is an awful, irreversible fatal disease which rightly elicits sympathy for you.  So, too, does all that I have mentioned already.

3So it was on 13 December last year that you wanted to travel from Cobram, where you were living, to Melbourne to see your brother.  You arranged for the State Trustees bureaucrats to transfer money into your account to pay the bus fare.  Your worker in Cobram helped you get the cash from the ATM.  You put the $60 into your cigarette packet.  By the time the bus was there, was about to arrive, you realised you had lost the cigarette packet and the money.  You called State Trustees and explained your situation as best you could and asked for more money to be transferred so you could travel to see your very ill twin brother.  State Trustees refused.  You were desperate.  You went to the police station and they gave you help to contact services that may have helped you.  You had rung State Trustees, which I have mentioned, from the Cobram Citizens Bureau.  When they refused to give you access to your money, you went to the kitchen and got a large knife. 

4You walked to the local supermarket and, after waiting your turn at the cigarette counter, you asked for $60, the amount that you had lost.  The shop assistant first thought you wanted to use the EFTPOS to get the $60.  You then raised the knife and said it was a robbery and put the knife back on the counter at one point.  The shop assistant told you to get out.  You did exactly that and went outside the shop and sat on the seat.  The police were called and you were arrested.  You made full admissions explaining that you had no other choice because you were desperate.

5You have pleaded guilty to attempted armed robbery.  Although attempted armed robbery is ordinarily a serious crime, this is not a serious example of that offence. 

6On the other side of the equation are the catalogue of mitigatory matters which is very long.  Your plea of guilty came at the earliest time, and thus I can give to you the largest benefit possible.  In all the circumstances of why you did what you did, with your acquired brain injury, with your understandable desperation to see your real brother, and the refusal of State Trustees to give you access to your money when you had explained that the earlier money was lost, all this has the effect that your moral culpability is so significantly reduced as to put your offence truly in a class of its own.

7Although there was no mention of it in any psychological report, it seems to me that it is your acquired brain injury that is the reason why you made the decision that you did, which you later realised was the wrong decision and made you feel like, in your words, a mongrel.

8You are not a suitable vehicle for any form of general deterrence, and that usually important sentencing consideration has no weight at all in this case.  Specific deterrence has no role to play at all. 

9Your circumstances call for mercy, not condemnation.  You are, with your limited cognitive capacity, nonetheless very sorry for what you have done, and I accept that you are remorseful.

10Given that you are now well-settled and well-supported in your new accommodation in Melbourne, the chances of you breaking the law again is very unlikely, especially as, sadly, your health is in all probability going to debilitate you to a significant degree reasonably soon.

11This is a case calling for a sensible and merciful approach to penalty.  It is unique, and thus the penalty will be at the lowest end of the sentencing options because that is the only just and appropriate way to deal with this matter.

12What I ask you is to promise not to break the law again, and if you do that, keep your promise for a whole year, then that will be the end of the matter.

13So, for committing the crime of an attempted armed robbery, this matter is adjourned now for 12 months on condition that you be of good behaviour.

14You will have to sign a document to say that you will be of good behaviour.  Your lawyer will help you with that, and any signature you put on the document will be sufficient.  Do you understand that?

15OFFENDER:  Yes.

16HIS HONOUR:  I am just asking you to promise not to do it again.

17OFFENDER:  Yes.

18HIS HONOUR:  Thank you.  Is there anything further required?

19MR EL-ASMAR:  No, Your Honour.

20HIS HONOUR:  The Crown have made an application that you provide a forensic sample, which would be a scraping from your mouth.  In all the circumstances, I refuse that application.  The offence, though serious, it is not in the interests of justice that you be required to provide a forensic sample. 

21There will be an order that the knife is disposed, notwithstanding that that will have the effect of the true owner.  The Citizens Advice Bureau do not get it, but that is what has been applied for, and I am not going to get into trying to get the knife back to the true owners.

22MR EL-ASMAR:  As Your Honour pleases.

23HIS HONOUR:  Thank you. 

24I should have said that the penalty of an adjourned undertaking is with conviction.  6AAA does not come into the equation at all.

25MR EL-ASMAR:  No, Your Honour.

26EXHIBIT 1 -      Documents from Donnellan Supported Residential Services dated 29/5/2014, together with medical materials and the guardianship.

27EXHIBIT 2 -      Dr Cunningham's report.

28Mr McDowall, the document is here for you to sign.  As I say, it goes for 12 months.  You have just got to be of good behaviour and, if you are, that will be the end of it.  So Ms King will come down - you come out of the dock and come up to the table here and sign the document.

29(Good behaviour bond signed and acknowledged.)

30Just take a seat there, Mr McDowall.  All right.  You will get a copy and that will be provided to you.

31Ms King, thank you very much for all your significant assistance here.  The outline that you produced, in particular with your unique way of starting the focus of the plea was something that I thought was very, very helpful. 

32MS KING:  Thank you, sir.

33HIS HONOUR:  I will encourage others to follow that process, that they start by telling us the focus.

34MS KING:  Thank you, Your Honour.  Thank you for that feedback.

35HIS HONOUR:  That helped me a great deal, as you can see, that I could deal with it in the way that it was dealt with.  Without your help, I could not have, we would be back another day.

36MS KING:  Thank you, sir.

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HIS HONOUR:  Thanks to the people, who are looking after

Mr McDowall, for coming to court, and to his sister.  We will adjourn now, and Mr McDowall can leave the court and get on with his life.

38Mr El-Asmar, thank you very much for your assistance and to counsel that could not make it.

39MR EL-ASMAR:  Thank you, Your Honour.

40HIS HONOUR:  There is no need for them to feel anything other than the job was - the court is not put out in any way, shape or form.

41MR EL-ASMAR:  Thank you, Your Honour.

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