Director of Public Prosecutions v McGee

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

CR 20-00787

DIRECTOR OF PUBLIC PROSECUTIONS

REBECCA McGEE

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JUDGE:	Her Honour Judge Hampel
WHERE HELD:	Melbourne
DATE OF HEARING:	17 and 20 November 2020, 15 February 2021
DATE OF SENTENCE:	8 April 2021
CASE MAY BE CITED AS:	DPP v McGee
MEDIUM NEUTRAL CITATION:	[2021] VCC 450

REASONS FOR SENTENCE
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Subject:

Catchwords:

Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. O'Toole	Office of Public Prosecutions
For the Accused	Mr A. Cameron	Matthew White and Associates

HER HONOUR:

Circumstances of the Offending

On the morning of 15 September 2019, you, Rebecca McGee, lured Adam Lehmann to your home in Echuca on the promise that you would supply him with heroin on credit. When he arrived, you locked him in. Your partner, Waylon Walsh, then ran at Mr Lehmann and attempted to stab him. There was a struggle. Mr Walsh struck Mr Lehmann's right hand and head with a knife and then stabbed him in the mouth. The knife penetrated his nasal and cheekbone area.
Mr Lehmann tried to leave and you stood in front of the doorway with your arms outstretched to stop him escaping. Mr Walsh stabbed him twice in the back before he made his escape. He then followed him out onto the front lawn and stabbed him again, this time in his right armpit, dragging the knife across the front of his chest.
There was another person present in the house. He intervened, and persuaded Mr Walsh to stop, tried to stem the bleeding from Mr Lehmann’s wounds and called 000. You spoke to the 000 operator. You told him that
Mr Lehmann was injured and that the offender was still present at the property before terminating the call. Mr Walsh then drove Mr Lehmann to the Echuca Regional Hospital, left him there and drove away.
Police arrived at your property and you falsely told them that Mr Lehmann had arrived there with a knife already in his back and that Mr Walsh had driven him to hospital. Mr Walsh told the same false story to the police.
They came back later that afternoon with a search warrant and seized several weapons, drug accoutrements, a mobile phone, approximately $1,400 in cash and a package containing heroin.
On 9 January 2020 another search warrant was executed at your property. When police entered you admitted that you had been using heroin that day and that there was some next to your bed. They seized that and some more that was concealed in other parts of the house, or in your clothing. They also seized a container with cannabis, some scales, a mobile phone, another $575 in cash and some weapons, a slingshot, a samurai sword and a katana sword. As you were being arrested in the carpark area of your property you were approached by someone else who appeared to have been coming to the house to buy heroin from you.
And it is these activities on those two days that give rise to the charges for which you come to be sentenced today. Charge 1, to which you pleaded guilty, is a charge of recklessly cause serious injury. It relates to your conduct in luring
Mr Lehmann to your property, locking the door to prevent his escape, knowing that Mr Walsh was intending to confront him. Although it is not put by the prosecution that you had specific knowledge that Mr Walsh would use a knife during the attack, you acknowledge that you knew he was going to be assaulted. Your conduct thereafter, in blocking the door to prevent
Mr Lehmann's escape after he had been stabbed, evidences your awareness that at the latest, by that stage, you were aware that the confrontation would probably result in serious injury.
Charge 2 is trafficking a drug of dependence. That is based on the finding of the heroin during the execution of the warrants on 15 September 2019 and
9 January 2020. A total of 29.2 grams of heroin at 17 or 18 per cent purity (15.16 grams of pure heroin) was found. The attendance at your home as you were arrested of a prospective purchaser, the possession of mobile phones, scales and other trafficking related items, and admissions you were trafficking, are also relied on as conduct relevant to the trafficking charge. Although it is properly to be regarded as a continuing enterprise, it is also clearly low-level trafficking and related to your own use. Whilst no trafficking is to be condoned, that this was related to your use, and at this low level, rather than it being the heartless profiteering or exploitation of the vulnerable which marks large scale commercial trafficking enterprises, is the lens through which your moral culpability is to be assessed.
Charge 3, to which you pleaded guilty, is possession of 0.4 of a gram of cannabis, which was seized on 9 January 2020. For sentencing purposes, I accept that was for your own use.
You have also pleaded guilty to two related summary offences one of possession of prohibited weapons; the slingshot, the samurai sword and the katana sword (RSO 10), and the other dealing with property suspected of being the proceeds of crime; namely the cash located at your place on 15 September 2019 and 9 January 2020 (RSO 16). The proceeds of crime charge clearly is connected with the trafficking. Although possession of weapons is a common feature of, or accompaniment to trafficking, these weapons appear to be more likely collector type weapons than those kept for offensive purposes related to trafficking businesses.

Injuries and Victim Impact Statement

Coming back to the effect on Mr Lehmann. He was airlifted from the Echuca Hospital to the Alfred. He had stab wounds to his scalp, his hand and his chest. There were fractures to his ribs, his hand, his nose, cheekbone and eye socket, lacerations to his ankle and his lip and subconjunctival haemorrhaging to his right eye.
The chest wound was life threatening. It involved a penetrating right posterior chest wound. It extended from the lower aspect of the right armpit across the right nipple to the centre of the chest, and it caused a right sided pneumothorax. Mr Lehmann went into cardiac arrest and needed advanced life support treatment.
On the first day of the hearing his victim impact statement was read aloud in court. He said that he struggled every day since the assault and rightly considers that his life will never be the same. He says he cannot sleep and when he does, he has nightmares of the attack. When awake, he is in constant fear of another attack. He is afraid to leave his house or to be alone. He reports loss of hand movement and continuing pain in his chest. That has also prevented him from returning to work. He says his relationship with his family has suffered as a result of anxiety about leaving the house and, not surprisingly, he reports having lost his feelings of happiness and desire.

Objective Gravity of the Offending

Although your role in the attack on Mr Lehmann was that of assister and facilitator, rather than the actual inflictor of the serious injuries suffered by him, the offence itself is clearly a serious example of its type. The maximum penalty for recklessly causing serious injury is 15 years' imprisonment. That is one measure of the seriousness with which Parliament and the community regards such a charge. Although you were not the actual stabber, and it is not put that you knew that Mr Walsh was armed with a knife at the time you lured
Mr Lehmann to the house and locked him in, you knew that there was an attack planned, that it was intended to attack him and, of course, Mr Lehmann was outnumbered. You lured him to the house with the promise of heroin on credit, exploiting a vulnerability – that is, substance abuse – that both of you shared. You knew he was to be assaulted and you locked him in and prevented his escape even after the initial attack by Mr Walsh. Whatever grievance you or Mr Walsh had against Mr Lehmann – and I was not told of any reason for this attack – there is no justification for subjecting him to such a frightening, painful and life-threatening attack. We are lucky in this country to live in peace and freedom, and where respect for others and their rights to be safe in our community is a fundamental value we strive to give real effect to for everybody. Conduct like this threatens everybody's sense of safety and community, not just the victim's.
It is clear, therefore, that subject to considerations personal to you, denunciation, general deterrence, just punishment and protection of the community loom large in the sentencing mix for this charge.
Although trafficking too carries a maximum penalty of 15 years, and considerations of deterrence, denunciation and just punishment are also significant sentencing factors for it, your trafficking offence is, as I have found, a low level of its type. The maximum penalties for the other offences are:
a)5 penalty units for possession of a drug of dependence of the quantity you had, and for your own use; and
b)2 years' imprisonment or 240 penalty units for the charges of possession of a prohibited weapon and dealing with property being suspected to be the proceeds of crime.

Criminal History

Turning then to your personal circumstances. You were 34 at the time of the offending and you are now 35. You have a criminal history going back to 2004. Most of your record is for minor dishonesty offences; shoplifting, other forms of theft and burglary, damaging property and some driving offences. Given your disadvantaged circumstances, to which I will refer shortly, that pattern of offending is not remarkable or surprising and none of it bears directly on this offending. In other words, there is no need to give weight to specific deterrence in respect of these charges by reason of those previous convictions.
Of real concern though, for sentencing purposes, is a previous conviction and sentence for intentionally cause serious injury and reckless conduct endangering life. That sentence was imposed in December 2010, so over 10 years ago. You were sentenced by His Honour Judge McInerney in this Court to a period of three years' imprisonment with a nine-month non-parole period. I have read the sentencing remarks of His Honour Judge McInerney.
That case – the injuries that you inflicted and the conduct that you engaged in – related to an assault on Waylon Walsh, your long term partner and your co-offender in this case. It involved you running over him in your car. He sustained, amongst other injuries, a traumatic brain injury. Judge McInerney described your offending back then as 'outrageous criminality' and noted that you were lucky not to have been facing more serious charges of murder or attempted murder. The same could be said here.
However, the circumstances surrounding the attack on Mr Walsh are very different from the circumstances here. You have been in a relationship with him since your mid-teens. You have five children together. The oldest is already a young adult, she is 18. It is a relationship marked and marred by long term substance abuse, and one in which you have been subjected to long term family violence. Violence from him to you preceded the episode which led to the charges for which Judge McInerney ultimately sentenced you. The relationship is obviously a complex one and it continued after you were released from serving your term of imprisonment. You continued living together following your release, and up until the time that Mr Walsh was remanded in custody following the attack on Mr Lehmann.
What is of note though is that apart from a single charge of driving whilst authorisation was suspended, you have not been before a court or charged with any other offences since completing that term of imprisonment in 2010.

Personal Circumstances

You come from an extremely disadvantaged background. I have taken much of what I refer to now from the neuropsychological report, which was presented on the plea and which was prepared by Dr Takagi of Arbias. It is also entirely consistent with the history that was presented to Judge McInerney. You grew up on an Aboriginal mission, your parents having been sent or placed there. You reported there being surrounded by drug addicts and alcohol abuse. Your father was physically abusive towards your mother and your uncles sexually molested your sisters. When asked directly by Dr Takagi whether you had been molested too, you said that you were unsure.
You report having a difficult time in school. Although you enjoyed spending time with other children in primary school, you were not allowed to socialise with them outside school. You and your sisters experienced bullying and you were suspended yourself several times for fighting. This was in primary school, but it continued into secondary school. You left school at Year 8. You still cannot properly read or write.
Your mother ultimately separated from your father and took you to live in Echuca. You were only 16 when you began your relationship with Mr Walsh. You left your mother's home, and your first child was born soon after. Since then you and Mr Walsh have had another four children. All five children had been removed from your care by DHHS and were placed in the care of, and under the guardianship, of Mr Walsh’s mother Auntie Jennifer Mitchell. She is a remarkable woman. She has supported you and the children throughout the whole time of your relationship with Mr Walsh, as well as supporting her son. She has attended and supported you throughout the many hearings of this matter and she is present with you today, as I sentence you. You clearly have benefitted from the support that she has provided you and the close relationship that the two of you have. I see her as a significant positive rehabilitative factor in your life. That is even the more remarkable because she supports you notwithstanding this difficult history with her son that you have had.
You have had a long history of substance abuse. By the time you left school you had begun smoking cannabis and your use increased from 2 grams a day, at the age of 13 or 14, to a quarter of an ounce from the age of 16. By Charge 3, and on your own account to Dr Takagi, you were still using cannabis at the time of this offending. By 16 you were using heroin intravenously and used a gram daily until the age of 34, when, on your remand in custody, you began on a methadone program. In your teens you started using inhalants; paint, petrol and fly spray. That was from about the age of 14. You stopped by the time you were 21, but the harm that that caused you is long term. In 2019 you were prescribed Valium, which you would take regularly, and you would also use unprescribed Xanax when you could get it. And, finally, you were using methamphetamine, up to a gram a week, from the age of 16 up through to the time of the offending.
Not surprisingly, with that long history of polysubstance abuse, you have now been formally diagnosed with an acquired brain injury, in addition to your intellectual disability. It is likely that you sustained the brain injury following a paint sniffing episode and subsequent fall in your teens. The intellectual disability accounts for your poor schooling and the far too easy path you took into substance abuse, and also accounts for many of the poor life choices or experiences that you have had. Your substance abuse has had significant physical consequences for you. Hepatitis C – for which it appears you have been successfully treated – asthma, and other respiratory difficulties, and heart difficulties. You also suffer from diabetes and back pain following a fall.
Your chronic disadvantage in childhood and the unsurprising but tragic consequences – a lifetime of poor mental health, substance abuse, living in a long term abusive relationship – mean that this is truly a case where the principles set out by the High Court in Bugmy[1] and the Court of Appeal in Marrah[2] have application. Extreme trauma experienced in childhood has long term effects into adult life and means that the course that is taken, the difficult choices that you are confronted with and a lifestyle that is a very hard one to break out of – that history of trauma, poor mental health and substance abuse has to play a significant role in mitigating what is otherwise the serious moral culpability that you would bear for this offending. However, because of that your moral culpability is significantly reduced and so too must be the weight to be given to deterrence and denunciation. This is not something that one can simply grow out of.
[1] Bugmy v The Queen (2013) 249 CLR 571.
[2] Marrah v The Queen [2014] VSCA 119.

Koori Court

You elected to have these charges heard in the Koori Court, and that is not an easy option. The sentencing conversation with the Elder, Auntie Pam Pederson and respected person, Michelle Winters, was confronting. They spoke directly to you and confronted you with some uncomfortable truths. They also confronted you with the need to make some hard choices and commended you on the steps that you had already taken.. They commended you on the care and love that you had shown for your children and the acceptance of support from your mother in law, Auntie Jennifer.
But it is because a sentencing conversation can be as direct and confronting as this one was, involving the direct conversation between you, as the offender, and the Elders, without the interposition of your counsel speaking on your behalf, that the Court of Appeal has repeatedly said that the sentencing conversation is a matter that can have significant impact on sentencing. In this case I am satisfied that as a result of your participation in the sentencing process you were shamed by being confronted with the uncompromising attitude of the Elders and respected persons that this was unacceptable behaviour within the community of which they and you are a part. They spoke very powerfully about the shame that you should feel about your role in having the injuries inflicted on Mr Lehmann, who was a friend and a member of your community. They challenged you and made you look beyond concern about yourself, to looking at how to actually implement a desire to be a more responsible parent to your children, and to live a substance abuse free and happy and participating life.
I accept that after the conversation you had a better understanding of your personal and moral responsibility of your conduct, that you demonstrated remorse and that you demonstrated a real desire to take advantage of the supports and assistances that were available to you – some within Koori specific services, some within mainstream services – in order to help you to have a better, happier and more meaningful life. It is for these reasons that the principles outlined by the Court of Appeal in cases such as Morgan[3] and Honeysett[4] apply in your case, and also operate to mitigate the sentence that would otherwise have been appropriate.
[3] R v Morgan (2010) 24 VR 230.
[4] Honeysett v The Queen [2018] VSCA 214.
I accept that your response by the end of the sentencing conversation was genuine and that that should enhance your prospects for maintaining your desire to be substance and violence free and to live a healthier, happier life in the community, with your family.

Sentencing Discounts

In the course of the plea – or in the earlier part of what became an extended plea over a number of months – Mr Cameron submitted that the principles in the case of Verdins[5] applied either because of the nexus between your cognitive impairment and the offending behaviour reduced your moral culpability, or because the nature of your cognitive impairment would make imprisonment more onerous. I already noted that Dr Takagi had diagnosed you as having a mild intellectual disability. He said this:
'Individuals with cognitive abilities commensurate with Ms McGee's typically experience difficulties reasoning, problem solving, planning, with abstract thinking, judgment, and learning from experience. As a result, Ms McGee struggles to think through the consequences of her actions and her ability to predict the likely outcome of her behaviour is impaired'.
[5] Verdins v R (2007) 16 VR 269.

However, he concluded:
'I do not think that Ms McGee's cognitive limitations causally contributed to the commission of the offence, however her limitations impaired her ability to exercise appropriate judgment and to think through the consequences of her actions'.
In respect of whether a term of imprisonment would be more onerous for you because of your cognitive impairment, Dr Takagi said:
'In my opinion, the most significant risk for Ms McGee would be her mental health. Individuals with intellectual disabilities are more likely to experience mental health difficulties and they frequently lack the verbal abilities to adequately describe their emotional state. In these circumstances, difficulties with mental health often manifest as challenging behaviour and opportunities to address mental health difficulties can be missed. It will be important to carefully monitor her mental health if she is sentenced to prison, however a prison sentence, in and of itself, would not have a significant adverse impact on her intellectual disabilities (that is, it would not worsen her disability)'.
These observations are general and do not support a conclusion that imprisonment would be more onerous to you specifically because of your cognitive impairment.
As I discussed with Mr Cameron in the course of a plea, I do not consider this is a case where Verdins does have any significant application, but, as noted, it is a case where both the Bugmy and Marrah principles, and the Honeysett principles, apply with considerable forceI consider that Dr Takagi’s report is highly supportive of the application of the Bugmy and Marrah principles.
At the conclusion of the sentencing conversation I adjourned the plea for some further assessments to be conducted. Dr Takagi's assessment of an intellectual disability was the first formal assessment of an intellectual disability of which I was aware.
You have now been formally assessed under the Disability Act as having an intellectual disability by reason of significant sub-average general intellectual functioning and significant deficits in adaptive behaviour; each of which became manifest before the age of 18 years.
In anticipation that there would be a formal assessment of intellectual disability I had also directed that you be assessed as suitable for release on a Justice Plan and I requested that an extended pre-sentence report be obtained. That necessitated further adjournments, as ultimately there were delays in the Justice Plan report.
You had been in custody since your arrest and, by the time the last adjournment was sought, you had served over 12 months on remand, and this at a time when prisoners were in lockdown or restricted conditions because of COVID-19. So when the additional adjournment was sought in February of this year – the original plea having been listed for November and that plea, in itself, having been delayed because of your desire to participate in the Koori Court, and the delayed Koori Court hearings resulting from COVID – I entertained an application for your release on bail, pending sentence. Ultimately, I released you on CISP bail; the CISP services only recently having been made available in this court. You therefore have been on CISP bail since February of this year, pending completion of the Disability Services and Justice Plan assessment. I also considered release on CISP bail would be a good opportunity to assess whether you had the capacity to carry into effect your clearly stated desire to be able to live a better and safer life in the community, to engage with supports that Mr Cameron had been so assiduous in seeking to set up around you, and which were then also going to be available to you through other sources.
I did so not only because I took the view that the extra delay was unfortunate – understandable, given the COVID related difficulties that justice was facing, or DHHS was facing – but because the time of over 12 months that by then you had spent in custody since arrest in those COVID circumstances seemed to me to be probably greater than the time that I was likely to impose as a sentence – as the custodial component of a combination sentence if ultimately I decided that you were suitable for release upon a community correction order .
So, you were released on bail and your progress under CISP supervision has been extraordinarily good. You were also, whilst all of this was happening, being formally assessed as being eligible for services under the National Disability Insurance Scheme (NDIS). Whilst NDIS does not provide forensic services, the lengthy adjournment since the original plea hearing has meant that you now have been formally assessed as suitable for services, you have an allocated disability services case manager and a package of funded servicesWhilst it is thought perhaps that those services could be better, and better targeted to your needs, you now have somebody to advocate on your behalf to increase the package of services and to make them more specifically related to you. The provision of NDIS services will greatly enhance your reintegration into the community and your overall rehabilitation, and it is very much to your credit that you have shown yourself so willing to accept the services and work co-operatively with them.
I have already briefly mentioned your progress on CISP bail. The original CISP assessment provided by Ms Pugliese was a very helpful one and the report that she provided for today's hearing, and the oral evidence she then supplemented it with, has really shown the importance of a program such as CISP for dealing with people in your circumstances. It has shown how well people in your circumstances can progress if given the appropriate support to help them carry their desire to be a better person into effect. Ms Pugliese concluded that you participated in the CISP program to the best of your ability, that you have remained candid about your lived experiences, values and support needs.
Whilst noting that not all of your support needs have been established, provision has been made for service implementation in the long term and it is
Ms Pugliese's opinion that provided that your Disability Justice Co-Ordinator is someone relatively local to Echuca, where you are living, that your forensic needs will be better served in the long term through the provision of a Justice Plan than continuation of bail and CISP. She recommended that you be treated as somebody who had successfully completed your CISP episode and recommended that it be finalised. I accept her report, her recommendations and the oral evidence that she gave.
Supports for you have now been established, or are in the process of being established under the following domains; mental health, substance use, physical health, family violence support, occupational therapy and cognitive functioning, and you have shown yourself– with the assistance of one person to provide the wraparound co-ordination, and to make sure that you are not overwhelmed by too many appointments or too many different services – well able to participate and to benefit.
The Disability Overview Report provided by the Department of Families, Fairness and Housing is also very positive. It notes that as a result of what has flowed from these charges in this case, this is the first time that you have been referred to disability services within the Department of Families, Fairness and Housing.You were referred only in February for preparation of a Justice Plan following the formal disability assessment. They noted that you were polite and respectful, participated in an open conversation with a Disability Justice Co-Ordinator, actively discussed your current circumstances including details regarding your intellectual disability, your goals, and how you could make positive changes to your current situation.
I accept what you reported to them; that is, that you are motivated to stay out of trouble and break the cycle of your involvement in the criminal justice system, that you have identified goals that you want to achieve in the future, and your express interest in engaging with an employment service provider to explore job opportunities – although, importantly, I also note and accept Ms Pugliese's recommendation that you be assisted to be transferred to a disability support pension rather than JOBSTART, or JobSeeker, so that you are not, at this stage of your rehabilitation, also required to apply for jobs and engage in vocational training.
You have also expressed a real desire to increase your knowledge of your culture, to know more and to learn the language of the Yorta Yorta people, engage in culturally specific and appropriate programs, at the same time while receiving help and support, ensuring that you maintain your privacy in respect of your forensic needs. That shows a really serious and good positive thinking. You have shown that you are willing to engage with Forensic Disability Services and that you are open to receiving supports and for participating in the recommended services. They note that you will require ongoing support to remind you of your obligations and appointments and assistance to get to scheduled appointments. They also note that the support that you have been receiving from Mr Jay Nguyen, of Engaged Care, has been of considerable assistance, and will continue to be of considerable assistance in your daily life activities and working with your NDIS plan, and working to improve the services and supports that are operated.
Mr Nguyen provided a very helpful report today on the progress that you have made since the approval of your NDIS plan early this year. Of your identified goals, you are making progress in all of them. The goal of wanting to learn to read and write – you have been engaged in looking at English class one on one program with the Echuca Neighbourhood Program, keeping records of your appointments by typing them into your phone and getting assistance with having things read to you. You have also enrolled in the local library so you can use the internet for grocery shopping, and to hire DVDs and books for entertainment at home. Your second goal identified was to reconnect with your children and to take them into the community to do fun activities. You have been engaged with Njernda Family Services, discussed assistance services relating to your children, food relief and housing amenity system, and expressed continuously a strong desire to engage with your children.
Consistently with that, Ms Pugliese reported the active steps you have taken to protect your children; particularly your son, who bears his father's name, from adverse publicity following reporting of the sentencing of his father for his role in the offending that I am sentencing you for. That shows really positive, active engagement and your absolute desire to put your children's interests of others and to protect them.
Your next goal identified was to find a job, and the engagement you are doing with that, but with a cautionary note I have expressed of looking after your other needs first so you do not overload yourself; to connect to your culture, and the steps you have taken in relation to that – partly of your own volition and partly with the assistance of the NDIS funding and working in with the programs there – and your express desire to learn how to budget, to live independently, and one day to own your own home. You are accepting, willingly, the support of support workers to help you prepare and cook meals at home; obtain your house furniture and necessary amenities at Vinnies; budgeting your NDIS transport funding so you can visit your children, family members, engage in social activities, and joining the gym once the NDIS funding for that has cleared. And so, you have not only identified goals but you have taken positive steps in respect of each of them wih the assistance and support that is provided to you.
The Justice Plan was also very positive. It recommended that you engage with the Disability Justice Co-Ordinator and to attend appointments and undergo assessments as requested, to participate in forensic disability supports and treatment that are identified by the Disability Justice Co-Ordinator, and to participate in a referral and assessment process for clinical services and participate in offending behaviour programs or services, as recommended. This dovetails with the recommendations in the extended pre-sentence assessment report that I commissioned at the same time as all these things were happening to assess your suitability for a community correction order.

Prospects for Rehabilitation

You have been assessed as a high risk offender, but one suitable for a community correction order, and it is clear that you need considerable supervision and support around you to ensure that you are able to continue to work towards achieving those goals of remaining healthy, substance free and offending free. To that end, although a high risk offender you have been assesses as suitable, but with recommendations about paeticipation in rehabilitative programs. I had a discussion with Ms Pugliese and with counsel this morning about how best to ensure that the appropriate supports are wrapped around you but you are not overwhelmed with too many conditions or too many programs, and it is as a result of those discussions that I have come to the view that the appropriate combination of sentence for you is this.

Orders

On that first charge, which is the most serious, I am sentencing you to a term of imprisonment of 12 months. Now, you have already done 403 days in custody and I am directing that your time in custody be counted and reckoned as part of the sentence. So, you have served the 365 days. That leaves the balance there, “in the bank”. In the event something terrible happens and you breach, there is some extra time there, but you do not now have to go back and serve any more time, that is the important thing. In addition to that 12 months' imprisonment I am placing you on a community correction order for that charge; also for the drug trafficking charge, and also for the charges of proceeds of crime and possession of weapons. On the cannabis charge I am convicting and discharging you.
So, it is imprisonment plus CCO for the first charge and CCO for the trafficking, the weapons and the proceeds of crime charge, and convict and discharge on the cannabis.
And the conditions that I am going to impose on the CCO are– there is a Justice Plan with those conditions that I have just read out from the recommendation and, to assist in the implementation of those, also under the CCO supervision. So, you will be under supervision of Corrections and that will help liaise with the Justice Plan; a treatment and rehabilitation plan, and offending behaviour programs. That is intended not to do a double up the offending behaviour programs under the Justice Plan, but to ensure that the best pathway for having you assessed and funded for treatment, and the best programs identified which can be done either under the CCO part of the program or the Justice Plan part of the program. I am also imposing a judicial monitoring condition to have you come back before me in two months, so we can check on your progress and adjust any of the conditions if we need to, and make sure there is a prospect for early intervention so if things are going wrong we can try and work out what to do to make them go better. You have done really well to date in telling people when things are getting a bit difficult, rather than disengaging, and I want to make sure that that continues to happen. I do not want it to get too much for you and have you just drop it all and say 'it's too hard', so the idea of the judicial monitoring is to come back so we can all check on progress and do any adjustments that are needed to make sure you are staying safe, offence free and achieving those goals.
So, I wanted to explain that to you before I do the formal delivery of the sentence; so, this is now the formal sentence.
Rebecca McGee, on all charges to which you have pleaded guilty you are convicted.
On Charge 1, of recklessly cause serious injury, you are sentenced to a term of imprisonment of 12 months followed by a two-year community correction order on conditions that I will outline shortly.
On Charge 2, of trafficking in a drug of dependence, you are sentenced to a community correction order for a period of two years.
On Charge 3, of possess a drug of dependence, you are convicted and discharged.
On related Summary Offence 10, of possess a prohibited weapon, you are sentenced to a community correction order for a period of two years, and on related Summary Offence 16, of dealing with property suspected of being the proceeds of crime, you are sentenced to a community correction order of two years.
Now, he community correction order has the following conditions. It lasts for two years, commencing today; 8 April 2021, and ends on 7 April 2023. You must attend Echuca Community Correctional Services by ringing them on the 1300 phone number that is on this document within two clear working days after the commencement of the order. I will not read out the phone number to you now, but I will give to Mr Cameron and make sure that he provides it you so you have got the right phone number to call them. I will do that now, Mr Cameron, as well as having it provided to you. It is 1300 199 359.
MR CAMERON: Thank you, Your Honour.
HER HONOUR: You must attend Echuca Community Correctional services by ringing them on that number within two clear working days after the commencement of the order. Now, today is Thursday, so that means Friday, or by Monday at the very latest, but on Friday or Monday you must ring them – or this afternoon.
There are mandatory terms that apply to all community correction orders. You know these, because you have successfully completed CCOs in the past, but I must remind you of them. You must not commit another offence for which you could be imprisoned during the time the order is in force. Now, that is just about any offence these days. You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations. That means you must not be impaired by substances when you attend for any meetings with, or participate in any programs as directed under this order, and you must submit to drug or alcohol testing if required to do so. You must report to and receive visits from the Secretary or delegate. You must let a Community Corrections officer know within two clear working days of you changing your address or job. You must not leave Victoria without first getting permission to do so from the Secretary or delegate. Now, because you live in Echuca, and you probably have to go to Moama regularly, that means you must speak to them at that first meeting about permission to go to Moama for chemist visits, doctors' visits, or another visits, but until you get that permission you are not allowed to cross the bridge and go to Moama – to New South Wales. Do you understand that? And you must obey all lawful instructions from and directions of the Secretary or delegate.
Now, in addition to those mandatory terms there are the following special conditions. You must be under the supervision of a Community Correction officer for two years, for the period of the order. You must participate in programs and/or courses that address factors relating to the offending, as directed by the regional manager, but I want to make it clear that it is expected that the Disability Justice Co-Ordinator under your Justice Plan, and the Secretary or delegate, will work together to identify the most suitable offending behaviour programs for you to be assessed for and participate in. You must reappear at court for review of your compliance with this order, as directed, and that means you must attend for review in two months' time; on 8 June this year at 9.30 am at the Melbourne County Court. Now, that will be by Webex again, you will not be required to attend in person, and you must participate in a Justice Plan – and the services specified in the Justice Plan – for a period of two years.

The specified Justice Plan services are these. One; you must engage with a Disability Justice Co-Ordinator, attend all appointments and undergo assessment as requested. Two; you must participate in any forensic disability supports and/or treatments that are identified by the Disability Justice Co-Ordinator, and three; you must participate in a referral and assessment process for clinical services and participate in offending behaviour programs or services as recommended.
Now, Ms McGee, do you understand the order that I've just read to you? Do you understand those conditions? I wonder could you just take yourself off mute, make sure I can hear you?
OFFENDER: (Indistinct words).
HER HONOUR: That's better. I can hear you now.
OFFENDER: I – yeah, I can.
HER HONOUR: So you understand the effect of this order?
OFFENDER: Yeah.
HER HONOUR: You understand the conditions?
OFFENDER: Yes.
HER HONOUR: And do you consent to this order being made?
OFFENDER: Yeah.
HER HONOUR: All right. Well, given these COVID conditions and the fact that I've made arrangements for you to appear remotely, I'm satisfied that you've understood the nature and extent of your obligations, and the conditions of your community correction order, and the consequences of your failure to comply with these conditions. If you fail to comply you understand that Corrections can direct you, or can give you certain directions and that they can give you formal warnings, and that they can bring breach proceedings, which would bring you back before me for re-sentencing.
OFFENDER: Yeah.
HER HONOUR: And if re-sentencing occurs then I may have to re-sentence you for the original offences as well as punish you for breach, and that may mean I'd have to consider these sentences all over again, and that might mean more gaol. You understand all of that?
OFFENDER: Yeah.
HER HONOUR: Okay. Do you consent?
OFFENDER: Yeah.
HER HONOUR: Good. Well, I'll take that as consent and we'll waive the formal requirement for you to sign a copy of this order at this stage, before it becomes effective.
So far as the term of imprisonment on Charge 1 is concerned, I declare that the period you have been in custody in respect of these offences is 403 days and I direct that that be reckoned as the period – or the part of it that relates to the term that I have imposed – be reckoned as the period already served under this sentence and is to be deducted administratively. The effect of that is simply that you have served the 12 months that I have directed already and you do not go back into custody.
Now, in addition I make the following orders. On Charges 2 and 3 I order that the property referred to in the schedule be forfeited to the Minister and, with respect to Charges 2, 3 and Summary Charges 10 and 6, I direct that all the property be forfeited to the Minister and, where appropriate, destroyed.
And I also declare, pursuant to s.6AAA of the Sentencing Act 1991 (Vic), that if you had not pleaded guilty I would have sentenced you to a total effective sentence of four years and made you serve two years before being eligible for parole, but because you have pleaded guilty, and because of the matters that I have identified, your sentence is the 12 months, which you have already served, and the community correction order with the Justice Plan. Understand all of that?
OFFENDER: Yeah.
HER HONOUR: Are there any further orders that are required to be made,
Mr O'Toole? And is the form in which I've pronounced the orders correct?
MR O'TOOLE: Yes, Your Honour. Nothing further from our perspective. As the court pleases.
HER HONOUR: Mr Cameron?
MR CAMERON: Your Honour, can I just ask whether they're individual community correction orders being imposed or is it one community correction order?
HER HONOUR: No, one community correction order.
MR CAMERON: As Your Honour pleases. Nothing further from me.
HER HONOUR: I will sign this order now, satisfied that it has been properly understood and consented to by Ms McGee, and arrange for copies of it to be sent to prosecution, defence, and Disability Services. Can I thank everybody present for their attendance, their assistance – the considerable assistance that's been provided over the lengthy time this matter has been taken before me. Ms McGee, I look forward to seeing you in early June and I hope that you're going to be able to give me a really positive report of the progress that you've made.
OFFENDER: Yeah.
HER HONOUR: And, Auntie Jennifer, if I see you then too, I'll look forward to seeing you, but again, I thank you particularly for the support that you've provided to Ms McGee and to the court in the hearing of this matter.
AUNTIE JENNIFER: Thank you, Your Honour.
HER HONOUR: As I said before, Ms McGee is very lucky to have you and you're a large part of why I feel the degree of confidence I do in making the orders that I've made. You're an absolute gem in your community and I hope everybody appreciates you as much as my words today have indicated I do. All right, thank you, and we will adjourn.
MR CAMERON: As Your Honour pleases.
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[2021] VCC 450

8 April 2021