Director of Public Prosecutions v McDowell

[2018] VCC 275

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

AT BENDIGO
CRIMINAL JURISDICTION

CR-17-02441

DIRECTOR OF PUBLIC PROSECUTIONS

v

KARL McDOWELL

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2018
DATE OF SENTENCE:	20 February 2018
CASE MAY BE CITED AS:	DPP v McDowell
MEDIUM NEUTRAL CITATION:	[2018] VCC 275

REASONS FOR SENTENCE
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Subject:     Attempted aggravated burglary x 1, threat to kill x 2.
Sentence:  2 1/2 years' imprisonment, 24 months non-parole.

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APPEARANCES: For the Director of Public	Counsel	Solicitors
Prosecutions	Miss M. Mahady
For the Accused	Mr R. Thyssen

1HIS HONOUR:  Karl McDowell, you have pleaded guilty to one charge of attempted aggravated burglary, for which the maximum penalty is 20 years' imprisonment, and two charges of making a threat to kill; the maximum penalty for this offence is ten years' imprisonment.  You also pleaded guilty to one charge of criminal damage to property which also has a maximum penalty of ten years' imprisonment.  Those charges are contained in indictment H11108216.

2You also pleaded guilty to four summary charges and through your counsel, Mr Thyssen, you agreed to have those matters dealt with by me.  Those charges consisted of two charges of unlawful assault for which the maximum penalty is 15 penalty units or three months' imprisonment and one charge of assault of a registered health practitioner for which the maximum penalty is 60 penalty units or six months' imprisonment, and one charge of committing an indictable offence whilst on bail for which the maximum penalty units or three months' imprisonment.

3When you were arraigned you admitted a lengthy criminal history from 16 previous court appearances not including appeals from the Magistrates' Court to the County Court.  You are now aged 25.  Seven of your previous court appearances have been in the Bendigo Children's Court.  Almost all of your previous criminal history involved offending of the kind similar to that which brings you before me.  The circumstances of your offending are contained in the summary of prosecution opening, tendered in evidence and read in open court by the prosecutor, Miss Mahady.

4It was accepted by your counsel, Mr Thyssen, as being accurate and as forming a proper factual basis upon which I can pass sentence upon you.  It is not necessary that I here set out that which is set out in the summary, except in an abbreviated way.  On 20 April 2017 you contacted your former partner, Sarah Cluester.  You told you had smoked synthetic cannabis and were suicidal.  No doubt concerned for your wellbeing, she picked you up in her car and took you to the Bendigo Hospital.

5You became impatient because you had not been seen at the hospital, and you were forced to wait whilst others were attended to.  Ms Cluester has tried to stop you from leaving the hospital, again no doubt concerned about you but you pushed her out of the way:  a summary charge of assault.  The following day you attended at Cluester's home despite the fact she told you not to come.  At her home you behaved in a bizarre manner prompting people who were at the home to call an ambulance, and they were also concerned for your wellbeing.

6Whilst Cluester and others attempted to physically restrain you, you struck her in the nose with a clenched fist:  second summary charge of assault.  You were taken to Bendigo Base Hospital for a mental health assessment.  After your release you were taken by police to the Bendigo Police Station where police executed two outstanding warrants.  You were bailed to appear at the Bendigo Magistrates' Court.

7You were released but became intoxicated, and in the early hours of the following morning you returned to Cluester's home where you argued with her through her locked security door and you threatened to kill her and a male person also in the home:  Charges 2 and 3, make threats to kill.  You became enraged and began hitting and kicking the security door which you attempted to ram with your body to get through with a hip and shoulder action:  Charge 1, attempted aggravated burglary.

8You then went to the side of the house where you damaged a window in an attempt to gain entry to the house by breaking a window:  Charge 1, attempted aggravated burglary and criminal damage.  And you damaged Cluester's car with a concrete paving brick:  the criminal damage charge.  You were arrested by police and taken again to Bendigo Hospital where you spat on a nurse:  summary charge, assault registered health practitioner.  The damage caused to Cluester's home and car totalled $1,300 and a compensation order in this amount is sought and was not opposed, and I have signed that order.

9This is clearly serious offending in a domestic context caused by you being affected by drugs and alcohol.  However, I am of the opinion that your overall level of offending falls below mid-range.  The sentence I impose must appropriately reflect deterrence both general and specific, and it must announce your offending and have regard to your rehabilitation.  I will discuss your background later, however whilst you continue to use drugs and alcohol, I form the opinion your prospects for rehabilitation are poor.

10Because of the kind of offending you have repeatedly engaged in, the sentence I impose must also have proper regard for protection of the public from you.  You have pleaded guilty to the charges and that is to your credit.  By your pleas of guilty you have saved the time and costs of what might have been two trials.  I treat you as having indicated that you would plead guilty at the earliest opportunity, for that you are entitled to a reduction in sentence and this reduction will be reflected in the sentence that I will shortly pass.

11I further treat your pleas of guilty as evidence of your remorse of your offending.  I will turn to some matters related to your background and personal circumstances:  you are now aged 25 years.  You were born in Geelong and your parents separated when you were young.  You have a brother and your mother and brother were present in court to support you.  I was told and accept that your father was diagnosed as bipolar and there is a family history of mental health problems.  Your mother remarried and you have four half-siblings.

12You were educated locally at Kangaroo Flat, leaving school after Year 9 where you were diagnosed as suffering ADHD and prescribed Ritalin.  Despite a very limited education you have had work in various labouring-type jobs felling trees, as a chicken catcher and de-bonder, and a beekeeper.  For a lengthy period you had been on Newstart Allowance.  Mr Thyssen described you as a "couch surfer" from which I infer you have no fixed address but stayed wherever you could find shelter.

13You have a history of mental illness having being diagnosed suffering bipolar type 1 with psychosis.  From time to time you have been an impatient, both voluntary and involuntary at various mental health institutions such as Alexander Bayne Centre, and you have been the subject of community treatment order.  In custody at Marngoneet you have been appropriately medicated for your mental state.  You seem to have adjusted reasonably well to custody where I was told and accept you are well-behaved and you work in the gardening crew.

14Your criminal conduct is largely influenced by the fact you are a regular and long-time user of cannabis, and at the time of this offending synthetic cannabis which is known to have significant and adverse side effects.  You also use methylamphetamine, ice.  As well as these drugs, at the time in question you consumed a large quantity of Woodstock bourbon.  Combination of drugs and alcohol helps to explain your bizarre behaviour in this offending but it does not excuse it in any way.

15I was told and accept that your prior criminal history is also party explained by the bad combination and use by you of illicit drugs and alcohol.  I admitted into evidence the psychological assessment of you by Warren Simmonds.  His report, Exhibit 1, confirms your mental diagnosis of being bipolar with borderline personality disorder and alcohol use disorder.  He thought you would benefit from an intensive residential drug and alcohol program.  He opined that unless you deal with your alcohol abuse you are likely to reoffend.

16In arriving at an appropriate sentence, I have taken this report into account.  Mr Thyssen accepted that your offending was serious and warranted immediate imprisonment.  He asked that I impose a lengthy period on parole so that you can possibly be released as soon as possible.  I have taken the view it is not appropriate to fix a non-parole period at an early date, but I have taken your general mental state into account in tempering the length of the head sentence.

17On Charge 1 of attempted aggravated burglary you are convicted and sentenced to a term and imprisonment of two years.  On charges of make threat to kill, Charges 2 and 3, you are convicted and sentenced to three months' imprisonment on each charge.  On the charge of criminal damage, Charge 4, you are convicted and sentenced to a term of imprisonment of six months.  On summary Charge 2, assault Sarah Cluester, you are convicted and sentenced to a term of imprisonment of one month.  On summary Charge 3, assault Sarah Cluester, you are convicted and sentenced to a term of imprisonment of three months.

18On Summary Charge 9 of assaulting a registered health practitioner, you are convicted and sentenced to a term of imprisonment of three months.  On summary Charge 12, commit an indictable offence whilst on bail, you are convicted and sentenced to a term of imprisonment of one month.  I direct the three months of the sentence imposed on Charge 4 and the whole of the sentence imposed on summary Charge 9 accumulate upon the sentence imposed on Charge 1 making a total effective sentence of two and a half years' imprisonment.

19I direct that you serve a minimum term of 20 months before you are eligible for release on parole.  I declare there has been 304 days' pre-sentence detention under the sentences passed this day, and the 304 days be reckoned as having been already served and be entered into the records of the court and be deducted administratively.  For the purposes of s.6AA of the Sentencing Act I state that had it not been for your pleas of guilty to the charges I would have imposed a total effective sentence of four and a half years and I would have fixed a minimum term of three years' imprisonment to be served before you would be eligible for parole.

20The prosecution sought the making of a forensic sample order for the taking of a forensic sample from your body.  That application was not opposed and for the reasons stated in the order I have made it, which means that whilst in custody you may be approached by a police officer and be asked to finish a forensic sample which is a swab taken from your mouth.  If you refuse, the police officer may use reasonable force to obtain the sample from you.  There any questions arising out of that?

21MISS MAHADY:  No, Your Honour.

22MR DOCHERTY:  No, Your Honour.

23HIS HONOUR:  Very well, thank you.  Thank you, Mr McDowell, I'm going to terminate the transmission.

24OFFENDER:  Thank you, Your Honour.

25HIS HONOUR:  Is Mr Docherty around – sorry, Mr McGrath?

26UNIDENTIFIED SPEAKER:  (Indistinct words).

27HIS HONOUR:  We're just going now.  Feel free to leave, Mr Docherty.

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