Director of Public Prosecutions v McIntosh

[2021] VCC 844

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

Case No. CR-19-01290

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEVEN MCINTOSH

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JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	22 June 2021
DATE OF SENTENCE:	25 June 2021
CASE MAY BE CITED AS:	DPP v MCINTOSH
MEDIUM NEUTRAL CITATION:	[2021] VCC 844

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:             Aggravated burglary – Causing injury intentionally – Plea of guilty

Sentence:                 Total effective sentence of 3 years and 6 months with a non-

parole period of 2 years.

6AAA:  Total effective sentence of 5 years and 6 months with a non-parole

period of 4 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A.M Stephanides	Office of Public Prosecutions
For the Accused	Mr. K. McLaughlin	Paul Vale Criminal Law

1HER HONOUR:  Steven McIntosh, you are to be sentenced today for two offences to which you pleaded guilty earlier this week.

2In July 2020 you were living in a boarding house in Morwell.  At that time you were 32 years old.  You had a female friend at the boarding house.  You became aware of certain interactions she had had with another resident at the boarding house, who is the victim in this matter.  You were unhappy about what had happened between the victim and your friend, and you told him to stay away from her.

3At about 10.15 pm on 14 July 2020, you and your female friend were arguing in the hallway of the boarding house near the victim's room.  The victim stood in the doorway of his room watching the argument.  You saw the victim there and rushed towards him.  You grabbed the victim by the neck and pushed him into his room.

4You followed the victim into his room and pushed him onto his bed, where you pinned him down.  You picked up a large oil heater and struck the complainant to the head maybe four or five times, and then threw the heater against the wall.  You punched the victim to the left side of his head four or five times.

5You then left the victim's room.  He came out of his room covered in blood.  A resident of the boarding house called Triple zero.  The police attended and spoke to the victim.  He was taken to the La Trobe Regional Hospital for treatment, arriving just after midnight on 15 July.  He was examined and found to have two eight to 10 centimetre long lacerations on the top of his head, which required eight staples and one internal stitch to repair.  He had bruising and swelling and soreness to the left side of his face, and his nose was fractured.  He was given pain relief medication and discharged around lunchtime the same day.

6The CCTV at the boarding house shows the initial events in the hall, you pushing into the victim's room, you leaving his room, and then the victim leaving.  I was told that you were in his room for no more than 37 seconds.  Whilst that is a short time, it is a long time for an assault.  You inflicted numerous injuries in that short time to the victim's head, which is a vulnerable part of the body.

7You say you cannot recall the offending, as you were taking a lot of drugs at the time.  I accept that this was unplanned, spontaneous offending.  Nevertheless you forced your way into the victim's room, which ought to have been a safe place for him.  He had done nothing to provoke this attack.  I note that the heater you picked up and struck the victim with is a large object, and that you are able to use it as a weapon illustrates the strength of your attack on him.

8The effects of your offending on the victim have been profound.  He is a man with his own mental health concerns.  Because of your offending he moved out of the boarding house to new accommodation, which was more expensive.  This eats into the funds he gets to live, and so he has less capacity to get support from his workers.  He was to spend more money on medications also.  Your attack left him feeling increasingly sad, angry, fearful and on edge, and affected his sleep, his emotions and moods, and so his relationships with others.

9You have a significant criminal history, and at the time of this offence were on a CCO imposed in December 2019 for offending including assault, and injury charges.  That CCO included conditions for assessment and treatment in respect to drug abuse and your mental health, as well as judicial monitoring.  Your prior history includes breaches of CCO, intervention orders, violence offending, dishonesty offences, drug offences, and one instance of burglary.

10Whilst commission of offences on a CCO can be treated as a circumstance in aggravation; in your case and in view of the forthcoming breach proceedings on that CCO, to avoid any double punishment I will not treat it as an aggravating factor.  It is relevant to your prospects of rehabilitation.

Personal Circumstances

11You are now 33 years old.  You say that your father was not involved in your life as a child.  You have described him as, 'A junkie,' and that he was not a good role model for you.  You say that you first met him when you were 18.  You have two half-brothers and a half-sister.  You were raised by your mother together with your siblings, but unfortunately for all of you she was subjected to violence by her partners.

12You have reported a terrifying violent incident where you and your mother were beaten after you stole a motorcycle when you were 11 years old.  You report that your head was stomped into the ground, and that afterwards you were diagnosed as having an ABI, although there does not appear to have been a formal medical evaluation and diagnosis of this at that time.

13Child Protection had to become involved with your family due to issues, apparently, that your mother was having with alcohol.  Your mother remains supportive of you, but your contact with her has sometimes been difficult due to there being in place family violence intervention orders, protecting her from your behaviour.  This means that since the age of around 16 you have often been homeless and without your mother's support.  You have a daughter who is now 15, but you do not have any contact with her.

14You were diagnosed with ADHD at age five, and medicated for that until around age 13.  You began to use drugs from the age of 11 or 13, developing issues with the abuse of alcohol and then a broad range of drugs, including stimulants such as methylamphetamine.  You attribute your early drug use to the medication for the ADHD.  You acknowledge that from an early age your life revolved around drug use and negative peers.

15Your schooling was impacted by the issues at home and your mental health and behavioural issues, but you managed to complete Year 10 and then took up an apprenticeship as a painter.  Your employment history is limited as your criminal history, drug use, and involvement with the criminal justice system impacted your ability to find and keep a job.

16To your credit, you have worked in the kitchen while you have been on remand for these charges.  Whilst you have been in custody there have been several deaths in your family, which has made you sad, and you describe grief and low mood since you were put on remand.  You reported that since being on remand you have not used any illicit drugs.

17Two reports were tended on the plea in respect to your mental state and cognitive functioning.  Doctor Fratti examined you and administered testing to assess your cognitive function.  She assessed your general intellectual ability to be in the borderline range, with a full scale IQ of 71.  You have difficulties across most of the range of the sub-testing categories and, concerningly for your prospects of rehabilitation, your executive skills were very impaired.[1]

[1] Neuropsychological Report of Dr Sara Fratti dated 4 May 2021 [38]-[39], [50]-[52] (‘Fratti’).

18Doctor Fratti also administered a test regarding your psychological state, and your response indicated very high levels of psychological distress in the previous month.  Doctor Fratti considered that your presentation was ‘consistent with a substance-related ABI or mild to moderate severity, in combination with longstanding ADHD’.[2]

[2] Fratti [45].

19Regarding the cause of the acquired brain injury she said that:[3]

'Although there may be some contribution to his pattern of deficits from undocumented head trauma that may have occurred, it is unlikely that traumatic head injury has resulted in significant change to his overall level and pattern of cognitive and behavioural functioning, particularly given that there does not seem to have been any significant loss of consciousness related to any of his later injuries, suggesting that they were possibly mild in severity.'

[3] Ibidem.

20She considered that your ADHD and substance-related ABI were chronic conditions, and noted also your long history of polysubstance drug abuse.  She also suggested that your history of misbehaviour and offending could be linked to antisocial personality factors, and your attitudes towards yourself and how you thought you could behave and react.[4]

[4]Fratti [46]-[47].

21Regarding the interplay of your drug use, mental state and the offending, she noted that abuse of substances can contribute to a reduction in cognitive function, including decision making whilst affected. She noted that the effect of ADHD and oppositional defiant disorder had a long-standing impact on your ability to regulate your behaviour, control your impulses, and on your decision making,[5] and at the time of the offending:[6]

'Based on the available information, it is fair to imply that Mr McIntosh's mental capacity and ability to make calm and/or sound decisions at the time of the offending would have been clearly reduced by his level of substance use to an unknown degree.'

[5]Fratti [54].

[6]Fratti [49].

22She also considered you were likely to find prison more onerous by reason of your ABI and other mental health issues,[7] which I accept and will take into account in mitigation of your sentence.  She did not suggest your mental state was at serious risk of becoming significantly worse in prison.

[7]Fratti [56].

23Doctor Cunningham assessed you in January this year.  He considered, like Dr Fratti, that the disinhibiting effect of your drug use exacerbated your already disinhibited state.  You are prone to reckless and impulsive behaviour when abusing drugs.

Matters raised on the plea

24You pleaded guilty at an early stage at the committal mention, and I accept that a plea at this very early stage entitles you to a significant discount in your sentence, particularly for the utilitarian value of the plea.  Usually a plea of guilty is seen as an indication of some remorse, and that may be so in your case.  However, I note the comments by Dr Fratti about your lack of insight about the offending.

25The utilitarian value of the plea of guilty is significantly greater in view of the effect of the COVID-19 pandemic on the operations of the court, and so the discount in your sentence will be greater for that reason.

26Your mental state combined with your drug use reduces your ability to think clearly and make sound decisions.  In view of your intoxication by drugs at the time of this offending, it was not submitted that this reduction on your culpability was wholly due to your mental state, but rather that that factor continued to operate, although in connection with your drug use.  As I have noted, I also take into account that your time in custody is more difficult for you than for a person without those deficits.

27The path of your life and your decisions which got you to the point of these offences, and that which you are now to be sentenced for, were influenced at an early age by negative circumstances outside your control.  To the extent that your lifestyle choices and your actions on this day have been a result of your childhood and youth, and are linked to causes other than drug taking; I accept that this is a factor in mitigation.  The weight in mitigation is less than it would be if you had not been heavily affected by drugs on this occasion.

28On the other hand, your background is also relevant to your prospects of rehabilitation.  You have an intrenched drug addiction and processes of thought.  These impact on your cognitive ability and insight, and have a negative impact on your prospects of rehabilitation.  Whilst you can now see the need for intensive drug rehabilitation, although the options for resi-rehab are limited by reason of your past history, you are keen to sort out entry into such a program once you are released.

29Your prospects of rehabilitation are a concern.  It is a real concern that you still do not have any real insight into your offending or its effect on the victim.  You told Dr Fratti, ‘I don’t know why I have assaulted the man. I don’t – do not really care. They say it was because of my girlfriend but she was not my girlfriend. I wish it never happened’ and ‘I am not sure how I feel about [the victim]. I guess we will be no longer friends’.[8]

[8]Fratti [20], [21], [53], [66].

30Your thought processes are not strong in the area of impulse control, insight, or consequential thinking.  Your drug taking has been a long established way of living your life.  The delivery of appropriate treatment and counselling will be more difficult by reason of your intellectual deficits.  The most positive I can be about your prospects is to conclude that they are guarded.

31The combination of your personal history and cognitive issues means that the principle of general deterrence should be given less weight.  But this factor is not wholly removed from the sentencing mix.  Similarly, just punishment and enunciation also retain weight in the discretion.

32Specific deterrence is an important factor.  You have now been on remand for nearly a year.  In that time you have been able to get clean from drugs for a substantial period of time.  You have found custody to be difficult and unpleasant.  I can only hope that your dislike of being in custody might act as a guard on your behaviour, and encourage you to address the causes of your offending once you are released.

33While the aggravated burglary does not have a number a of features that would make it a more grave instance of this offence; the effects of your behaviour on the victim and his fear for his own safety, even in his own room, illustrate why this is an inherently serious offence.  The attack with the heater and your fists led to quite significant injuries to the victim.

34Your lawyer rightly conceded that the totality of the offending would lead to a prison sentence with a non-parole period.  Your lawyer urged me to focus the sentence on addressing your rehabilitation in view of the impact of drug addiction on this offending, as well as your criminal history.

35Whilst your rehabilitation is, of course, one of the sentencing goals and relevant to the protection of the community, it is not a factor which in this case takes precedence over the other sentencing principles and goals.

36Mr McIntosh, the sentences are:  Charge 1, aggravated burglary, the sentence is two years' imprisonment; on Charge 2, intentionally causing injury, the sentence is three years' imprisonment.  I direct that six months of the sentence on Charge 1 be served cumulatively upon the sentence on Charge 2.  That means the total effective sentence that you will have to serve is three years and six months' imprisonment.  I set a non-parole period of two years.  I note that this relatively long period of parole is to give for you the opportunity for supervised release and rehabilitation if you are granted parole.

37I declare that 339 days, not including today, have been served as pre-sentence detention, and I direct that that declaration be entered into the records of the court.  Pursuant to s6AAA I state that if you had not pleaded guilty, I would have sentenced you to five years and six months' imprisonment with a non-parole period of four years.

38HER HONOUR:  Were there any other orders?

39COUNSEL:  No, Your Honour.

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