Director of Public Prosecutions v McInnes

[2015] VCC 1391

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 15-00885

DIRECTOR OF PUBLIC PROSECUTIONS

v

CARL MCINNES

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Bendigo
DATE OF HEARING:
DATE OF SENTENCE:	30 September 2015
CASE MAY BE CITED AS:	DPP v McInnes
MEDIUM NEUTRAL CITATION:	[2015] VCC 1391

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N Hutton
For the Accused	Ms J Kennedy

HER HONOUR:

1Carl Leslie McInnes, you have pleaded guilty to one charge of attempted armed robbery, Charge 1 and one charge of false imprisonment, Charge 2.  The prosecution sought an order for the taking of a forensic sample from you and the making of that order was not opposed.  The maximum penalty for attempted armed robbery is 20 years' imprisonment.  The maximum penalty for false imprisonment is ten years' imprisonment.

2The circumstances of your offending are set out in detail in the Summary of Prosecution Opening which was tendered as Exhibit A.  In brief, the circumstances were as follows.

3On Friday 5 December 2014, at about 11 pm, you and a co-offender went to the victim's premises and knocked on the door.  The victim lived next door to you.  The victim opened the door and let you in.  Your co-offender followed you in.  Once inside, your co-offender slapped the victim to the side of his face.  Your co-offender told the victim to sit down in very strong terms and to shut up.  The victim immediately sat down.

4You then produced a knife which had been concealed in your jacket sleeve.  You held the knife in your right hand.  You stepped towards the victim and said that you wanted the victim's money.   The victim described the knife as a normal sized steak type knife with a four inch silver blade.  Your co-offender slapped the victim again.  The victim was terrified and believed that he was not able to leave.  Your co-offender continued to ask for money.

5You and your co-offender searched the victim's premises.  You did not find any money.  You left the premises and drove off in what I understand to be your co-offender's vehicle.  The victim says that it was then about 3 am.

6You were arrested on 7 December 2014.  A record of interview was undertaken.  You admitted being present at the scene but denied being in possession of the knife and said that you did not make any demands for cash.

7

On 11 December 2014, you voluntarily attended the Maryborough Police Station to participate in a second record of interview.  This time, you admitted that you were in possession of the knife which was in the sleeve of your jacket.  You said that you did not hear any demands for money from the

co-offender.  You said you had the knife because you were afraid of the

co-offender.

8Your co-offender has not been charged.  Your counsel said that she believed that he had not yet been able to be located by the police.

9I have taken your personal circumstances into account in sentencing you.  Your personal circumstances were set out by your counsel and also in the report which was tendered from Dr Krishna Manapali, locum psychiatrist dated 2 September 2015.

10You were born in country Victoria and were the last of nine children.  There has been some depression and substance abuse with a number of people in your family having a history of abusing alcohol.  You say that your childhood was good and that your parents have been supportive.  I note that your father is in court to support you.  You complete d school and started working as an apprentice butcher.  You later moved to Melbourne and worked as a fully qualified butcher.  You also worked as a plasterer for ten to 12 years, but have not worked for the last three or four years.  You had a significant marriage breakdown some years ago.  It appears that your alcohol consumption increased from about 2004 onwards, which is when your prior criminal history commenced. 

11You have admitted what is a limited prior criminal history with three court appearances since 2004 involving what appears to be drunken behaviour drunken driving.  In 2010, you were placed on a community based order for 12 months for charges which included assaulting police.

12Your general practitioner, in a report dated 17 September 2015, says that on the day before the incident for which I am sentencing you, you consulted your general practitioner in regards to your state of mind.  You described having difficulties which your doctor describes as psychiatric illness.  It appears to have been as a result of that, that you were subsequently referred to the psychiatrist whose report I have earlier referred to.

13Dr Manapali says that you present with symptoms of anxiety, connected with a post-traumatic stress disorder and symptoms of depression.  Dr Manapali says these symptoms are in the context of an assault which occurred on you on 28 March 2015.  On that date, you were seriously attacked by the victim in this matter.  The victim in this matter, accompanied by two others, effectively cornered you in a supermarket.  The victim slashed at your neck with a box cutter.  The injury to your neck resulted in hospitalisation and 15 stitches.  The symptoms that Dr Manapali describes occurred in the context of this attack as well as a number of previous stressors outlined in the report.

14Dr Manapali says these symptoms occur on a background of a personality which he describes as being characterised by anger outbursts, poor frustration tolerance and emotional dysregulation.  Dr Manapali also refers to your background of chronic long-term polysubstance abuse, mainly involving alcohol and cannabis.  Dr Manapali says,

"Carl presents with a long term risk of harm to self and others, mainly because of the substance abuse and other personality traits".

15He makes recommendation as to ongoing treatment for you and says that you need to engage in long term counselling to address your substance abuse and to be compliant with medication to address your long term risks.

16A brief report was tendered, dated 14 September 2015 from Mind Australia.  You have attended nine appointments with that organisation which deals with alcohol and drug issues.  It is reported that you have engaged very positively with that service and are willing to make changes and to reduce and deal with your mental health problems and substance abuse issues.

17Your counsel, in sentencing submissions, submitted that the appropriate sentence would be a community correction order or if I was against her on that, imprisonment followed by a community correction order.  Your counsel relied on a number of factors in mitigation of sentence, including your plea of guilty, your assistance to police, your remorse, your limited prior criminal history, your prospects of rehabilitation, your mental health issues and the application of Verdins principles, the subsequent assault by the victim and your fear of retribution in custody.

18Your counsel submitted that general deterrence ought to be moderated and that specific deterrence would need little weight in sentencing you, especially in view of the assault on you and the consequences.

19The prosecutor, in sentencing submissions, accepted that your plea of guilty had been made at an early stage.  The prosecutor also accepted that your second visit to police was highly significant in terms of the admissions that you had made.

20Carl McInnes, the offending that you engaged in can only be regarded as serious offending.  The maximum penalty available for attempted armed robbery is 20 years' imprisonment.  That demonstrates the seriousness with which parliament on the behalf of the community takes this type of offending.

21There were two of you who went in to the victim's home.  You made the initial demand for the money.  I accept that your co-offender slapped the victim and told him to sit down and was more insistent in the demands.  That said, the production of a very threatening type of knife by you, must have caused significant fear in the victim.  Both of you threatened, either by your presence, by weapons or by words, the victim.  You were both engaged in searching the property.  This was an attempt only because you were not able to find any money but this is a very serious and significant attempt.  The victim was in his own home.  You were known to him as a neighbour.  There were two of you and one of him. 

22No explanation has been provided for this offending.  You have not been able to provide any explanation as to why you were with the co-offender and why both of you went into the premises.  The only explanation that can be inferred from your behaviour is that you were after money.  It is understandable that the victim was terrified and that he unable to leave and was imprisoned in his own home.

23There are a number of matters which do operate in mitigation of sentence and I will come to those shortly.  Even taking those matters into account, I consider that a community correction order on its own would not sufficiently reflect the need for a just punishment, denunciation and general deterrence in the light of this serious offending.  Only some time of imprisonment could properly reflect those sentencing considerations.

24I have taken into account in mitigation your plea of guilty.  You indicated early on that you wished to resolve the matter and it has been accepted that the committal was a useful part of the process.  Your plea of guilty in those circumstances has considerable utilitarian benefit.  It has saved considerable expense and trauma of a trial.

25I accept that your plea of guilty is an expression of your remorse.  Your remorse and regret for this incident was evidenced by your second visit to the police where you made significant admissions.

26My conclusion is that you have very good prospects of rehabilitation, especially if you receive support with your mental health and alcohol and drug issues.  You have a good work history in the past.  You have a limited prior criminal history.  You have on occasion sought help, including around the time of this incident.  Since this offending, you have sought out and engaged in treatment with the Mind organisation.

27I accept that your current state of mental health means that imprisonment will be more difficult for you and that your sentence ought be moderated to reflect that.

28I also accept that imprisonment will be more difficult for you because of your fears of retribution from the victim in this matter who is now in custody in relation to the attack on you.  I accept that you are also fear of retribution from the victim's associates.  Those fears will make imprisonment also more difficult for you.

29I do not accept that your mental health conditions are such that general deterrence ought be moderated to any significant degree. 

30I note that you have reported some physical health problems and I have taken that into account in not requiring you to do community work under a community correction order.  It is difficult to give weight to your physical health concerns without further medical information.  I have considered those matters and the ability of the medical services within prison to be able to arrange treatment for you of whatever that condition may be to do with your feelings of numbness or pain in the leg.

31I have given low weight to specific deterrence.  Your rehabilitation appears to be underway and as I have said, I consider that you have very good prospects of rehabilitation with support.  I also accept that the attack on you has made you fearful and means that you are less likely to offend again in the future.

32The very serious and totally unwarranted attack on you has been taken into account as extra-curial punishment which has already been received by you.

33I consider that an aggregate sentence is appropriate as both of the charges arise from the same incident.  Could you please stand up, Mr McInnes?

34On Charges 1 and 2, you are convicted and sentenced to an aggregate term of imprisonment of six months.  That term of imprisonment is to be followed by a community correction order of two years.  There will be the following special conditions: supervision, treatment and rehabilitation for drug issues, treatment and rehabilitation for alcohol issues, treatment and rehabilitation for mental health issues and treatment and rehabilitation in terms of programs to reduce reoffending.

35I have included the mental health condition because I consider a degree of supervision of that would be appropriate given that you are going to spend a period of time in prison.

36It is to be hoped that you will be able to continue with or re-engage with your current counselling whilst you are in prison and once you are released.  Do you agree to the making of a community correction order in those terms?

37OFFENDER:  Yes, Your Honour.

38HER HONOUR:  The other aspect, which apart from the core conditions, is that if you breach the community correction order by reoffending or by not doing what they tell you to do, you can be brought back to me for re-sentencing.  If you are brought back to me for further offending of a serious nature, I consider that imprisonment would be the only re-sentence to be available.  You need to bear that in mind.  Do you still consent to the order being made?

39OFFENDER:  Yes, Your Honour.

40HER HONOUR:  But for your plea of guilty, I would have sentenced you to a term of imprisonment of three years with a non-parole period of two years. 

41I make the order for the taking of a forensic sample from you.  I make that order because of the seriousness of your offending and because the making of the order was not opposed.  Mr McInnes, I am required to tell you that when the authorities come to take a sample from you by way of a saliva swab from your mouth, you must co-operate with them.  If you do not co-operate, they are entitled to use reasonable force and to take a blood sample.  I am sure that you will co-operate with them. 

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