Director of Public Prosecutions v McGee

[2022] VCC 2050

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-00357

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM MCGEE

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 November 2022
CASE MAY BE CITED AS:	DPP v McGee
MEDIUM NEUTRAL CITATION:	[2022] VCC 2050

REASONS FOR SENTENCE

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Subject:

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Legislation Cited:

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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. D. Singh	Office of Public Prosecutions
For the Accused	Mr R. Thyssen

HER HONOUR:

1William McGee, you have pleaded guilty before me to one charge of carjacking, one charge of theft and one summary charge which was uplifted for hearing pursuant to s145 of the Criminal Procedural Act, of assault with a weapon.

2The facts underlying your offending are as follows.  On 4 August 2020, you attended the home of the two victims Christopher Jackson and Shane Lesley Travis.  Mr Jackson has an acquired brain injury from a motor car accident and Mr Travis is his carer.  They lived in Balaclava Road in Shepparton. 
Mr Jackson had recently bought a new motor car, a blue Holden Commodore Sedan.  Mr Travis knew both you and your co-offender, whose name is
Colin Charles through a mutual associate.  Between 7 and 7.30, the pair of you went to the front door of the house which Mr Jackson answered.  He did not know either of you.

3You were wearing a long jacket, a surgical mask and you had a full beard and Mr Charles was wearing a surgical mask.  You gave your name and when Mr Travis came to the door, he recognised you both.  He spoke briefly to the two of you through the security door before joining you outside and the three of you spoke about Mr Jackson having recently bought the car and that he was due to regain his licence.

4Mr Travis heard a grunting sound that drew his attention to you Mr McGee, at which time he saw you waving around a yellow coloured claw hammer in your hand.  He stepped away from you thinking you were making a joke, but you told him to stop fucking around and demanded the keys to Mr Jackson's car.  You also demanded that Mr Travis had over his mobile phone, but he refused to do it.  You said 'Give me your phone or I will smash you' and these actions underlie the summary charge of assault with a weapon.

5Mr Travis refused and put his phone in his pocket.  You demanded the phone again accusing Mr Travis of recording you. To prove that he was not, Mr Travis took his phone out of his pocket to show you at which time you snatched the phone from his hands.  You told Mr Travis he would get his phone when he handed over the keys to Mr Jackson's car.  Mr Travis yelled to Mr Jackson who came to the front door and you told Mr Jackson that if he did not hand over the keys you would cave Mr Travis' head in.

6Mr Jackson went to his bedroom to look for his keys, but could not find them.  Then you and Mr Charles became anxious, pacing around the front porch and were heard talking about your suspicion that Mr Jackson may have called police.  Mr Travis tried to get his phone from you and you told him that you and
Mr Charles would come back in ten minutes to collect the car keys and if they were not ready, the phone would not be returned, you would assault Mr Travis and run through the house. The two of you then left the property on foot.  Eventually Mr Jackson found his keys and about fifteen or twenty minutes later you both returned, and Mr Travis gave you both Mr Jackson's car keys.  You refused to hand back Mr Travis his phone.  Mr Charles told Mr Jackson if police were notified, the two of you would come back and then you both left in Mr Jackson's car.

7On 5 August 2020, Mr Travis and Mr Jackson reported the matter to police and on 6 August, the police showed Mr Travis two photos boards, one containing your photograph and the other of Mr Charles.  Mr Travis positively identified both of you.  Eventually on 6 August, police in an unmarked vehicle saw the blue Holden Commodore with no registration plates, driving erratically in Mitchell Street.  They chased it for a while, but then lost contact.

8The car was then found abandoned in a bushland area and identified as
Mr Jackson's by the vehicle identification number.  Items were found in the car, which when swabbed and analysed provided extremely strong support for the fact that the DNA was yours.  The phone and the numberplates of the car were never recovered. 

9Mr Charles was arrested on 15 August and on 18 August, you attended the Shepparton police station by appointment when you were arrested and gave a no comment interview.  This matter resolved to a plea of guilty in August of this year, just before the trial began.  The maximum penalty for carjacking is 15 years imprisonment.  The maximum penalty for theft is 10 years imprisonment.  The maximum penalty for assault with a weapon is three months imprisonment.

10You have remained in custody since August 18, but on 15 September 2021, were sentenced by His Honour Judge Cahill on charges of armed robbery, recklessly endangering serious injury and committing an indictable offence whilst on bail.  You were sentenced to a total effective sentence of three years and four months imprisonment, with a non-parole period of two years.

11You became eligible for parole on 18 August this year and the full sentence ends on 15 January 2024.  You therefore have no pre-sentence detention in relation to this offending and obviously because of this sentencing which was for subsequent offending, that is offending after this incident, a question of totality has arisen in the sentencing exercise before me.

12I now turn to your personal circumstances.  You are now 30 years of age, you were 28 at the time of this offending.  You were born and raised in Shepparton, you are a Yorta Yorta man.  Your parents ultimately separated.  You have three older sisters and a number of half-sisters on your parents' side.  You had a difficult childhood, marked by both seeing and being on the end of domestic violence.  Ultimately, your father was gaoled and when you were in Grade 5. You found this a particularly traumatising incident as you were constantly bullied because of it.  Word had got around the town and amazingly, you were able to leave school in Grade 5 and never went back.

13You went onto develop both alcohol and drug problems at an early stage in your adolescence and it was quite clear that on the day of this offending, you were under the influence of ice.  You have done a fair bit of labouring work on and off over the years, but each time you had to give it away because of your drug problems.  You married young and in fact you have seven children, aged between one and twelve years.  I received neuropsychological and psychological reports on the plea.  It is quite clear that over the years, you have developed in particular, an anxiety difficulty, that began when you were about ten, when you were in Grade 5 and that was particularly marked on in both the reports that I received.  You have also unsurprisingly struggled with depression over the years.

14It is clear you had a very difficult upbringing and the problems that you suffered as a child have followed you into adulthood. It is clear also, that over the years, you have learned to self-soothe and to deal with your own psychological problems by using ice.  You have previously appeared before the courts on a number of occasions.  Your prior criminal history goes back to 2016 when you were dealt with for possessing ice, fail to answering bail, making a threat to kill, assault with a weapon and driving offences.

15In 2017, you were again dealt with for possessing a controlled weapon without excuse, possessing a dangerous article and driving offences.  You were also placed on a community corrections order in 2017, which you ultimately breached for continuing offending going up into 2019.  Again you were placed on a community corrections order in 2019 for shop stealing, committing an indictable offence on bail, unlicenced driving and possessing a dangerous article in a public place.

16The sentence from His Honour Judge Cahill was the first time you received a term of imprisonment.  It should not be the case, but gaol it appears has been good for you.  I have received a wealth of material, attesting to the fact that you have used your time gaol extremely profitably.  In particular, you underwent, despite the limitation on the programs as the result of the Covid pandemic conditions, which have restricted programs in the gaols, you completed a 44 hour drug intense use program.  It is a semi-intensive drug and alcohol treatment program and I received an extremely impressive reference from Aboriginal wellbeing officer at Loddon Prison, Ellie O'Leary, talking about the work that you have done in gaol, not just on yourself, but in relation to fellow Aboriginal inmates.

17She stated:

'William has recently stepped up into the Aboriginal peer listener which he has been thriving in'.

18I make the comment here that I am well aware that to become a peer listener, you have to be an exemplary prisoner and indeed, to be placed at Loddon Prison, you have to have shown a clear commitment to giving up drug use and not to being involved in any of the drug trade that obviously still operates in gaol.  So the fact that you are in Loddon Prison says to me that you have made active steps about your drug use and whilst you have been at Loddon Prison, you have been promoted to a position of considerable trust.

19Ms O'Leary went onto say:

'William has shown leadership and compassion and William works collaboratively with the Aboriginal wellbeing officers programs staff and unit staff to ensure the best outcomes are achieved'.

20She described you as an active artist who is heavily involved in the Torch Program and in what I regard as a most productive conversation table exercise in the Koori Court today, you informed us that not only have you been exhibited at Torch, but you have sold paintings there.  Ordinarily, in dealing with you, had that been at or near the time of your offending, I would not have been able to say what I am going to say now which is that in my view your prospects of rehabilitation have vastly improved.

21Present at court today were your father and two of your sisters and their partners.  It is my understanding that when you finally leave gaol, you will go to live with your sister Lana who works with Rumbalara and who wrote a most impressive reference. I very much congratulate you Ms Scott on that reference which was extremely articulate and intelligent.  Your sister is some years older than you which is a good thing.  She with her sister Charney and your father have been actively involved in the care of your children who all came to court, behaved incredibly well and I particularly want to compliment your oldest son Will, who very bravely spoke at the conversation table and was of a huge help to the court.  It was really well done Will and I really congratulate you and as I said, this is something that everyone at the conversation table will always remember.

22Your father spoke very movingly in support of you, as did your sisters and I understand that when you go to live with your sister, work will be available for you in plastering.  You regularly attend Narcotics Anonymous in Loddon which is an extremely intelligent decision on your part, because it means that when you do leave gaol, Narcotics Anonymous will be available to you. I very much encourage you to continue seeking the learning and companionship that Narcotics Anonymous offers those who attend.  So it seems you have a stable place to live when you leave, a great deal of family support, employment waiting for you and the services of your sister and her involvement at Rumbalara to assist you.

23Can I urge you when you do leave custody (because as was conceded by everyone in court today, I am going to have to deal with you by way of a further term of imprisonment, although it would be much less than would otherwise be the case) that you attend to your anxiety difficulties.  They are not going to go away, they are old, you have had them since you were a child.  You will need psychological support and fortunately your sister Lana is very interested in mental health issues and will assist you with that.

24Make sure you get appropriate medication for it and learn how to deal with that.  It is going to be an enormous temptation when you get out of gaol, when you encounter those anxiety difficulties for you to turn back to drugs as a way of dealing with them.  I was very impressed with what you had to say at the conversation table.  I am satisfied that you are remorseful for your offending, even though the plea came at a late stage. 

25I am satisfied you have got good insight into what you need to do and it is quite clear to me that your children love you very much and want nothing more than for you to leave gaol, come back into their lives. It is very important that you have apologised to them, so that they clearly know that what you have done is not acceptable and that you have made that clear to them.

26In all the circumstances, I propose dealing with you by way of a straight sentence which does not involve a period of parole.  This was a course which was agreed to by Mr Singh for the prosecution and I thank Mr Singh for his very helpful participation in the conversation table today.  I also thank your counsel Mr Thyssen for his very full sentencing submissions and the reports that he tendered on your behalf.

27In all the circumstances, I am going to deal with you by way of an aggregate sentence because all of the offending arose from the same incident.  So on each of the charges, you are sentenced to twelve months imprisonment which will begin today.  Because you engaged in a car theft, I must make an order disqualifying you from obtaining a licence for a period of time and I am going to order that you be so disqualified for a period of twelve months. 

28That means that when you eventually leave gaol, you will be able to apply for a licence soon after you are released.  In sentencing you, I take into account your plea of guilty, your much improved prospects of rehabilitation, the great strides you have made whilst in custody, the stable accommodation, job prospects and family support that you will enjoy on leaving custody.  So it is very much a joint effort from yourself Mr McGee and from the terrific family that you are lucky enough to have and I wish you all the best.

29I also take into account the fact that you have been serving gaol at a time when there are restrictions on the programs that have been offered due to the Covid pandemic conditions in gaol, accompanying the pandemic.  I also take into account what the Court of Criminal Appeal stated in Worboyes as to the fact that a plea of guilty nowadays attracts a more than usual discount because of the catch-up the courts are now engaged in regarding matters that could not be heard whilst the court was closed down during the height of the pandemic.

30No victim impact statements were tendered, but I have no doubt that both Mr Jackson and Mr Travis were absolutely traumatised by what you did Mr McGee and as I said at the conversation table, you and Mr Charles picked out two very vulnerable men and it was something you should bear in mind.  The harm that you can do when you are on ice.  You made the comment at the conversation table that that was not you, when you were offending, but it was you Mr McGee, it was the you that you are when you are using ice.  And I only mention that again because I want you to remember this, when you return to the community, who you are on ice and how different that is from the man you clearly can be and the man that you want to be.

31Pursuant to s6AAA, I declare that you had not pleaded guilty, I would have sentenced you to a term of three years imprisonment and order that you serve a minimum term of eighteen months.  I have signed the disposal - what have I done with it?  I always lose this, here we are.  Here is the disposal order for you Mr Singh.  That is all I need to deal with, good luck to you Mr McGee.  You have done amazing work for yourself, really probably the best work you have done for yourself since you were a child.

32OFFENDER:  Thank you so much.

33HER HONOUR:  You know it is really impressive.  You have got so much support when you get out, you absolutely deserve it, I am so impressed with your family.  I was impressed with your sisters, their partners and your children.  You have got a great deal to look forward to in your life, I was very impressed with the moves you have made.  Just keep it up and you will have an extraordinarily rewarding life and hopefully one day, we may see you here as an elder n the Koori Court.

34It is one of the worries, I have been sitting in the Koori Court for a long time and I see the elders, and I am not being rude to Auntie Pam, but they carry an enormous burden and they are getting older and they have been putting in for many many years and we want to see the younger members of the Koori community step up, but the elders play a crucial role in the court and I would like to see, particularly more young men like yourself, stepping up.  You come out and do well, the amount of good you can do for your community, I simply cannot describe, all right?

35OFFENDER:  Thank you.

36HER HONOUR:  I thank everyone very much for their assistance today in what I thought was a very good conversation table and I wish the whole family all the very best.  Thank you very much, we will adjourn to 9.30 tomorrow morning. 

37OFFENDER:  Thank you.

38HER HONOUR:  Thank you very much.

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