Director of Public Prosecutions v McGregor

[2017] VCC 1360

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

AT BENDIGO
CRIMINAL JURISDICTION

CR-17-00381

DIRECTOR OF PUBLIC PROSECUTIONS

v

KATE MCGREGOR

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Bendigo
DATE OF HEARING:
DATE OF SENTENCE:	19 September 2017
CASE MAY BE CITED AS:	DPP v McGregor
MEDIUM NEUTRAL CITATION:	[2017] VCC 1360

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Doyle
For the Accused	Mr G. Barns

HER HONOUR:

1Kate Elizabeth McGregor, you have pleaded guilty to one charge of negligently causing serious injury, Charge 1 and one uplifted Summary Charge 5 of committing an indictable offence whilst on bail.

2The maximum penalty for negligently causing serious injury is ten years' imprisonment.  The maximum penalty for committing an indictable offence whilst on bail is three penalty units or three months' imprisonment.

3The prosecutor sought an order for the forfeiture of certain items.  The making of that order was not opposed.

4The circumstances of your offending are set out in detail in the Summary of Prosecution Opening which was tendered as Exhibit A. The offending occurred on 8 June 2016.  Between 5 pm and 6 pm on that day, you and the victim went to a residential address in Eaglehawk.  You had been in an off/on relationship with the victim.  You were not in a relationship with him at this time.

5The house you attended is the home address of a mutual friend of you and the victim.  You had been paid by your friend to clean the premises.  The victim was attending to fix computer equipment that belonged to your friend.

6During the course of the evening, you and the victim consumed a number of cans of double strength Jack Daniels and Cola.  Also during the evening, you, the victim and your friend used sets of bows and arrows inside one of the bedrooms of the premises.  Your friend had set up a target which was about knee high and to the right of a door into the ensuite bathroom, which went off the bedroom.  The door to the ensuite bathroom was opposite the entry door to the bedroom.  You all three fired arrows from the entry doorway into the target which was a distance of approximately 5 metres.

7At about 11 pm, your friend went to bed upstairs, leaving you and the victim downstairs.  You started using the bow and arrows inside the bedroom again.  You have taken two shots at the target and were set up to take a third shot.  At that time, you noticed the complainant in your peripheral vision in the ensuite doorway.  You fired the third shot, striking the complainant in the centre of the chest. The victim was screaming and dropped to the ground.  As he fell to the ground, the shaft of the arrow had dislodged from his chest, leaving the four pronged head in his chest.  He was bleeding significantly.

8You rendered first aid and called 000, requesting an ambulance.  Police and ambulance officers attended.  The victim was conveyed to the Bendigo Hospital and admitted to the Intensive Care Unit.  He underwent surgery to remove the arrow head. As a result of being shot, he sustained the following injuries:  A 2 to 3 centimetre entry wound at nipple level, active bleeding from the right internal thoracic artery and a 1 centimetre laceration to the anterior surface of the right upper lobe of his lung.

9You were arrested and taken to the Bendigo Police Station.  You participated in a record of interview.  During that interview, you were cooperative with police and made full admissions.  You said you had accidentally shot the complainant after he had emerged from the ensuite.

10Further investigations were conducted and on 21 June 2016, you were re-arrested and a second recorded interview was conducted.  Again, you were cooperative with police and made full admissions.  You denied deliberately shooting the victim.

11You were on bail for another matter at the time of this offence.

12Your plea of guilty was indicated at the earliest opportunity and the committal proceeded by way of a straight hand-up brief on 1 March 2017.

13In sentencing you, I have taken into account your personal circumstances.  Your personal circumstances were outlined by your counsel and in the psychological report of Mr Jeffrey Cummins, dated 17 May 2017, which was tendered as Exhibit 1.

14You are now aged 40.  You grew up in the Bendigo area.  Your parents separated when you were three.  You lived with your grandparents for 12 months and then your father and step-mother until you were 12.  You left home then due to issues within the family.  You went into foster care.  You were living independently at the age of 15.  You do have a bond with your father.  Your father and step-mother were in court to support you.

15You moved to Melbourne when you were 12.  You completed Year 10.  You worked and then became pregnant.  Very sadly, you were delivered of stillborn twins when you were 22. You were in a relationship for about four years with a man with whom you had a 17 year old son.  He now lives with you.

16Whilst you were in that relationship, you completed a Certificate IV in Juvenile Justice, Child Protection and Statutory Supervision.  You briefly worked at the Malmsbury Juvenile Detention Centre.  Then you spent four years working with Anglicare.

17When you were 28 years old, you commenced a relationship with the victim.  You have not been employed since that time.  You have a daughter with the victim who is now eight.  There was domestic violence in that relationship.  Your now ex-partner was also a drug user.

18You have described yourself as a poly drug user.  You started with using cannabis of the age of 14.  In the four years up to mid-2016, you were a regular methamphetamine user.  You have not used methamphetamine since you were remanded in mid-2016.

19You have now relocated to Melbourne.  You say you wish to work towards regaining care of your daughter who is currently in the care of the Department of Health and Human Services.  Your daughter has been in the care of that department since 2015.

20You spent 114 days on remand in respect of this matter.  About two months of that was spent in a psychiatric unit.  Mr Cummins says that during that period of time, you were weaned off methamphetamine and your mood was stabilised with medication.  At the time of his report, you were medicated with Seroquel to assist you to sleep.

21Mr Cummins says you are fearful of receiving mental health treatment due to the psychological distress that you think you are likely to experience prior to any improvement in your mental health state.

22Mr Cummins is of the opinion that you suffer from a chronic adjustment disorder with mixed anxiety and depressed mood.  He says you have also suffered traumatisation due to various issues in your past.  He says that you have genuine mental health problems for which you require treatment of the type, which you are unlikely to receive in custody.

23Mr Cummins describes the ongoing risk factors for you, including use of cannabis and a risk of returning to methamphetamine use.  He considers that a potential future risk factor would arise if you agreed to the efforts by the victim to resume the relationship.  Your instructions to your counsel are that you have no intention of doing that.

24You have admitted a prior criminal history.  One matter was in 1993.  Otherwise, your offending has been since 2012.  There is one particularly relevant matter being a prior matter of assault with weapon in 2012.  You were placed on an adjourned undertaking which suggests that that was relatively minor offending.

25You have been placed previously on community correction orders.  In March 2015, you were placed on a 12 month community correction order.  That was breached, but was confirmed on 4 September 2015.  On that date, you were also placed on an additional six month community correction order.

26In addition to a report as to your suitability for a community correction order, I have received a report on your progress in respect of those community correction orders.

27Your counsel in sentencing submissions submitted that you ought to be sentenced to time served with a further community correction order.  Your counsel said that you accepted that what happened was very dangerous.  He particularly relied on your plea of guilty, your remorse, the matters in the report of Mr Cummins, the time you had spent in custody, your limited criminal history and your efforts towards rehabilitation.

28The prosecutor submitted that a community correction order was well within the sentencing range.

29Kate McGregor, the offending to which you have pleaded guilty involves an admission that you owed a duty of care to the victim and that your voluntary actions fell so far below the standard of care a reasonable person would have exercised and involved such a high risk of death or really serious injury that warrants criminal punishment. It is a very dangerous thing to do to discharge such a serious weapon within a confined space and when you were drug and alcohol affected.  It is clear from the medical material that the injuries suffered by the victim were potentially life threatening.  The injuries were bad enough but could have been very much worse.

30General deterrence must be a very important sentencing consideration to discourage anyone else who might consider a similar action.

31Specific deterrence is also a relevant sentencing consideration.  You have made some efforts at rehabilitation but clearly need further engagement in drug and alcohol and mental health treatment.  You have had the opportunity in the previous community correction orders but you have not been successful in stopping drug use or in dealing with your mental health issues, despite ultimately being compliant with the community correction orders. It is important that you understand that if you do not address these issues, you are likely to reoffend and end up in prison.

32Apart from your own well-being, you have the additional motivation of regaining care of your daughter.  Your potential to do that would clearly be improved if you can fully engage in addressing drug and alcohol and mental health issues.

33You have reasonable prospects of rehabilitation.  You clearly have abilities given your previous work history.  You have motivation to provide some stability for your children.  You have made efforts to move to Melbourne and have complied with the community correction order imposed in last November.

34I also take account the matters in Mr Cummins' report and his opinion.

35It is of considerable concern to me that under the previous community correction order, you have completed 43.5 out of 100 community work hours, but there has been very little to no operation of the treatment conditions due to you moving between Melbourne and Bendigo and non-attendance.  Your prospects of rehabilitation will be much greater if you are able to continue in the community to maintain your care of your son and contact with your daughter and fully engage in the treatment conditions.

36In mitigation of sentence, I have taken into account your plea of guilty.  That has had the benefit of avoiding the trauma, expense and inconvenience of a trial. I accept that your plea of guilty is an expression of genuine remorse.  It is very significant that you immediately gave the victim first aid and rang 000.  You also made full admissions and cooperated.  Those are very significant matters in sentencing you and in mitigation of sentence.

37A sentence of imprisonment is warranted for the purposes of just punishment, general deterrence and specific deterrence but given the matters in mitigation and circumstances of this case, a short sentence of imprisonment to be followed by a community correction order could adequately reflect the relevant sentencing considerations.

38Could you stand up please?

39As I have said, Ms McGregor, you have been assessed as suitable for a community correction order.  You have had the core conditions of the community correction order explained to you and you have had the opportunity to go through the proposed special conditions with your counsel.

40The conditions that I propose are that the community correction order be for a period of 24 months.  The conditions are that you do 250 hours of community work, that you undergo treatment and rehabilitation in respect of drugs, mental health and programs for reduced reoffending.  There will be a judicial monitoring condition.  The community work hours are to be performed cumulatively on any work hours imposed in previous community correction orders.  Up to 150 hours satisfactorily undertaken in treatment and rehabilitation programs are to be counted as unpaid community work.  Do you consent to that order being made?

41OFFENDER:  Yes.

42HER HONOUR:  Thank you.

43In respect of Charge 1 and summary Charge 5, you are convicted and sentenced to an aggregate term of imprisonment of 114 days.  That sentence of imprisonment is to be followed by a community correction order of 24 months with the conditions that I have outlined.

44I declare that you have served 114 days of this sentence by way of pre-sentence detention to be deducted administratively.

45But for your plea of guilty, I would have sentenced you to a term of imprisonment of 12 months with a non-parole period of six months.

46I have made the orders for forfeiture that were sought.

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