Director of Public Prosecutions v McGrane

[2015] VCC 1619

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01468

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAKE MCGRANE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	13 November 2015
DATE OF SENTENCE:	16 November 2015
CASE MAY BE CITED AS:	DPP v McGrane
MEDIUM NEUTRAL CITATION:	[2015] VCC 1619

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ballek
For the Accused	Mr C. McLennan

HIS HONOUR: 

1Jake McGrane, you have pleaded guilty to one charge of attempted armed robbery.  That crime carries a maximum penalty of 20 years' imprisonment.

2You are still only 22 years of age and are clearly a young offender.  I accept that your plea of guilty was at the earliest reasonable opportunity, and includes a great deal of remorse if not shame.  You must of course also get the utilitarian benefit of that plea of guilty.  In situations such as this, where the offender is affected by a drug, it is a terrifying experience for a victim, and you have saved this victim the ordeal of having to at least think about going to a trial.

3I note also that your confessional approach to this commenced within the record of interview, and that you were in a very distressed state shortly prior to the commencement of that.

4You have no prior convictions, and you have no matters pending, each of which gives me confidence in your prospects of rehabilitation.

5Firstly, pursuant to s.464ZF of the Crimes Act, 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 provide such a sample, police may use reasonable force to take it from you, and that order is made and handed down.

6The summary of the offending is quite simple and shows the lower end of the scale for this particular crime.  In some aspects it is a sad scenario, but as I often say in these sentencing processes, tell that to the victim.

7In any event, you are 22 years of age.  You have had a cannabis-related psychosis from 2013.  I am told in a medical report from Mr Healey that you have been diagnosed with schizophrenia; whether that is accurate or not, I am not too sure.  But in any event, you are not a well young man.

8You had endeavoured to take your own life on 29 May 2015, and that is supported by the reports that I have from your general practitioner.  You had at that stage been using ice for a significant period of time.  You were clearly, as is always the case with ice, having extreme difficulty sleeping and may well have been heading for psychosis again.  But in any event, you were supposed to take one tablet of your medication, and took instead six.  As you told the police, doing that caused you to "go loopy" and I think that your capacity for reasoning would have been severely diminished.

9Very sensibly, your counsel has not gone anywhere near mental impairment, and I simply take that as reducing your moral culpability insofar as Verdin's is concerned, and to a degree at least, the aspect of general deterrence.  This is not the situation of a self-induced drug psychosis; it is one by an over-application of medication, and that can become a somewhat moot point insofar as moral culpability is concerned, but I give you the benefit of the doubt in that respect.

10In any event, having put yourself in that situation you got out of bed, put on a black hooded top and black track pants.  You then collected a black balaclava from your bedroom and a kitchen knife from the kitchen, climbed out the bedroom window, went into the garage and picked up a hammer.

11At 2.45 am, you were wandering down Plenty Road and came to the BP Service Station in Bundoora.  You went to the front of the store with the balaclava on, and the hood of your top pulled up.  You had the hammer and the knife in separate pockets of your tracksuit pants.

12The store attendant had understandably locked the doors because of the hour of the night, and he would not let you in until you had removed the hood.  You complied with that and he opened the doors.  You then walked in and approached the counter.  You then engaged the attendant in a conversation, saying that you were from the northern suburbs; that you were homeless; that your mother was dead; that your father had kicked out of the house.  The attendant thought that you were trying to cry, but could see no tears.  You repeated this information.

13The attendant told you that you could take some food and drink, and he would pay for it out of his own money.  You then said, "I don't want food or drink.  I just want the money from the register", to which he said, "I can't do that."  You said basically, "I can't leave here, I need the money from the register", and you then told him that you had the hammer in the pocket and the knife in the other pocket.  The victim in this matter saw the handle of the hammer and became extremely frightened.  It is at that point that the crime has been committed.

14He then told you that he would get the money out of the ATM, but you would have to leave the store first.  You took a chocolate drink and waited outside.  He then locked the doors and called 000.  You were pacing up and down outside, and ultimately at some stage put the knife, the hammer, the balaclava and the milk container which you had taken from the shop into a rubbish bin.

15Police arrived at approximately 3 am and arrested you at the front of the store.  You complied immediately when told to lie on the ground.  When handcuffed, you told the police where the weapons were.  You began crying hysterically.  You were then taken to the police station and were interviewed.  The police position is that you were appearing to suffer anxiety attacks, and you lost consciousness a number of times.

16You were treated by ambulance staff but were lately deemed to be fit to be interviewed, and you underwent that interview.  During the course of that, you explained about the dosage of your medication.  You said you had not slept properly for a few days.  You had very little memory of it all, and to your credit you said that you wanted to apologise to the victim.  You said that you had taken the extra tablets to sleep, and did not expect this to happen.

17There is no victim impact statement before me, but it is the situation as I have indicated that offending such as this, in the early hours of the morning with a victim on their own, faced with a person who is clearly under the influence, is a terrifying experience indeed, and I do not need a victim impact statement to tell me that.

18The offending has to be regarded as serious, albeit perhaps at the lower end of this type of offending.  In normal circumstances, it would call for the application of general and specific deterrence, as well as denunciation and appropriate punishment.  As has been said on a number of occasions, the sentencing landscape has altered to a certain degree since the handing down of the decision in Boulton v The Queen.

19You are 22 with no priors and a significant history of mental problems, especially over the last few years.  There is a report from Mr Healey that I have read; there are reports from your GP which I have read, and they all describe a basically honest young man who has had drug problems now since the age of about 12.  As I understand it, your drug psychosis with cannabis was suffered around about the age of 17.

20It is to your credit that despite having been a user of substances over that period of time, you do not have a criminal history.  As I think I have already indicated, that gives me confidence in terms of your rehabilitation.

21Since the offending, you have committed no offences and have been undergoing treatment and have had the assistance of your GP Dr Wong.  As President Maxwell said in the decision of Tocava, it is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for the reformation of an offender, ought to be grasped. That after all maybe a decision which resounds very much to the benefit of the community.

22I take the view that this is very much a case where that is applicable.  It is a situation where Boulton is also applicable, and I see that gaoling you for a period of time would serve no useful purpose from the point of view of the community or anybody else.  Indeed, the Crown do not seek to argue with that proposition.

23You suffer from anxiety and depression, but it would seem that you have support from your family.  You have support from qualified people.  You are not unintelligent, and if your anxiety problems and the like can be brought under control, there is no reason why your prospects of rehabilitation should not be excellent, the risk of your reoffending virtually non-existent.

24Having taken into account all those matters, and also the CIS program report that was tendered on your behalf, as well as your apology and a reference, it is my view that a community corrections order disposition is well within the sentencing range available here.  That community corrections order will be with conviction, which I am fully aware is a punishment in itself.

25I have you assessed for a CCO, and you have been found to be acceptable, and I you agree, I will release you on such a disposition.  The community corrections order will be with conviction, will be for a period of two years, will have the conditions relating to drug use and mental health, and will also have supervision.

26Importantly, in your situation Mr McGrane, you have had the extremely, I would have thought, salutary experience of having served 22 days' imprisonment before I passed this disposition.  In those circumstances, I think the appropriate way to do it is to sentence you to 22 days' imprisonment, plus that CCO; direct that 22 days be reckoned as having been served under this sentence; and that you are to be released forthwith.

27I do that, gentlemen, just so it is clear that the CCO was not by itself.  That is all.  Are there any others I need to make, other than having him sign it?  Because it is a CCO, 6AAA does not apply, so I will not be doing that.  Nothing else we need?

28MR BALLEK:  Your Honour made a disposal order previously.

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HIS HONOUR:  I made that previously.  All right, I just want to go down,

Mr McLennan, and then we will see you for signing.

30MR MCLENNAN:  Thank you, Your Honour.

31(Community-based order signed and acknowledged.)

32HIS HONOUR:  Just stand up for me just for a second, Mr McGrane.  Look, I understand you are a young bloke.  Stuff like this happens, all right?  If you have trouble, you have got to talk to people, and you have got to do something about it.  I accept that what has happened here is totally out of character for you, but what you have got to think about is, if something like this happened again, what if the bloke came across the counter, and you have got a knife?  It can end up in disaster, all right?

33So it is really important that if things are not travelling well - and I am not saying they will not; I am hoping they will - but if things are not travelling well, talk to people.  Do not ever let it get to this stage again, all right?  But otherwise, good luck with it.

34OFFENDER:  Thank you.

35HIS HONOUR:  Yes, thank you Mr McLennan.

36MR MCLENNAN:  Thank you, sir.

37HIS HONOUR:  Thank you, Mr Ballek.

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