Director of Public Prosecutions v McIntosh
[2017] VCC 1599
•19 October 2017
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No.CR-16-01747
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V KAIA MCINTOSH |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 19 October 2017 | |
DATE OF SENTENCE: | 19 October 2017 | |
CASE MAY BE CITED AS: | DPP v McIntosh | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1599 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Bourke | Office of Public Prosecutions |
| For the Accused | Mr B. Johnston | Balmer & Associates |
HER HONOUR:
1 On 9 March 2016 an armed robbery was committed on the National Australia Bank at Newcombe. Involved in that armed robbery were two people, Jade England and Craig Barlow. Ms England was arrested at the scene and an examination of her phone records led to the detection some days later of her co-offender, Craig Barlow. He was then arrested and remanded in custody.
2 The armed robbery was committed using a car which had been stolen two days before. The car was not located at the time either England or Barlow were arrested.
3
Following Barlow's remand in custody, he telephoned you, Kaia McIntosh, and told you to contact a person by the name of Carter, to get rid of the car which had been used in the armed robbery. You did so. Carter was picked up some days later in possession of the stolen car and acknowledged to the police that it was his understanding that the car belonged to, or had been used by
Mr Barlow.
4 As a result of your contacting Carter when requested to do so by Craig Barlow, you have now pleaded guilty to one charge of assist offender. It is important to note that that charge has, as an element or component, that the assistance was provided in circumstances where you knew or believed that Barlow had committed an armed robbery.
5 You come before the court as a person without any previous or subsequent convictions. You were 35 at the time of the offence and are now 36. It is clear that your involvement in this offence came about by reason of your connection with Craig Barlow. The connection is an unusual one. He is the father of your now 19 year old daughter. You had that child at the age of 16, when going through what was described as a "rebellious" teenage phase. You were otherwise a child in a stable family with a good upbringing, who was doing well at school. You had come to meet Barlow and not long after, at the age of only 16, became pregnant to him.
6 The relationship was short-lived. In fact, by the time the child you chose to bear (rather than succumb to pressure to terminate the pregnancy, given your youth), was three months old, Mr Barlow was in custody. By then the relationship, such as it had been, was over.
7 Having become a mother at the age of 17, by the time the child was two weeks old, you decided to live in accommodation independently from your parents. You have been the sole supporter of your child since then. Your schooling was unsurprisingly interrupted by reason of the unplanned pregnancy and the birth of your daughter, but you took independent accommodation. You worked, returned to study, completed your Year 12 of schooling, completed a Diploma in Library Information Services and engaged in permanent part-time work whilst bringing up and supporting yourself and your daughter.
8 There is no history of any involvement with drugs and no other criminal history.
9 When your daughter was in her mid-teens, she expressed an interest in reconnecting with her biological father. There had been no contact from him with you or with her from about the time of your daughter's birth and certainly no contact from the time he went into custody when she was three months old. You supported your daughter's desire to have and make connection with her biological father. He was then serving another term of imprisonment and you supported her in arranging and facilitating and being present with her when she visited him in custody.
10 That led to the rekindling of a relationship, first by correspondence between you and Mr Barlow and then on his release from custody, to what appears to have been a rekindling of a romantic relationship. Within four or five months of his release from custody, you found yourself involved in this offence.
11
In that time after Mr Barlow's release from custody, the two of you had not
cohabitated, although you had considered yourselves to be in a relationship. He went, it would appear, rapidly from being drug-free upon his release, to returning to a life impaired by drugs. That had led to a diminution in the contact between your daughter and him and obvious difficulties in the way you were relating to him and the connection between the two of you.
12 Although you were 35 at the time of the offending, you had really no meaningful relationship with a male, other than Mr Barlow, since the birth of your daughter. You had had one short-lived relationship that had not led to living together, so one can say that although at 35, you are a woman of mature years, you had not had experience of navigating a relationship in your adult years. So it is clear, in my view, that your association with this offence came about by reason of your connection with Mr Barlow. It stands in significant contrast to the way you had lived your life since the birth of your daughter and up until the time he had returned into your life in the circumstances I have described.
13 It has been 18 months since you were charged with this charge of assisting offender and there has been no other criminal involvement on your part and it would appear again, no evidence of any illicit substance use blighting your life.
14 Those circumstances in themselves are enough and would have been enough to satisfy me that whatever penalty was imposed upon you, it was not appropriate to record a conviction.
15 Section 8 of the Sentencing Act 1991 (Vic) makes it clear that the court has a discretion as to whether or not to record a conviction and it must have regard to circumstances, including the nature of the offence and the character and past history of the offender. That you got to the age of 35 and struggling, in circumstance in which you did, but creating a successful life for yourself and your daughter, indicates that the circumstances of the offending are so closely related to your connection with Barlow that, in my view, you should not, at this stage of your life, have this one mistake, or this one succumbing to the pressure of the circumstances adversely impact you by having a conviction recorded against your name.
16 There are circumstances, on what I have been told, a tragic and complex story that also, in my view in this case, results in my considering that it is appropriate to show mercy to you. In my view there are extenuating or exceptional circumstances in this case and your circumstances, as contemplated by s.70(1)(e) of the Sentencing Act 1991 (Vic), justify making an order to release you without conviction on an adjournment, on a promise to be of good behaviour. Those are these: I am satisfied that, but for your daughter's desire to reconnect with her biological father and your support in understanding that the need for a child to reconnect with her biological father, for her to do that, that you would not otherwise have reconnected yourself with Mr Barlow. Although you may not have known it at the time, you now do know that there were particular reasons why your daughter may have felt the need to have a father figure who had not previously had a connection with her, but to whom she might be able to turn for support or advice.
17 The circumstances are such that because they intrude so significantly upon your daughter's story and her wellbeing, I am not going to recite them here. They are set out in the outline of submissions and they are not contested by the prosecution.
18
Your daughter, having been a thriving, happy child who was clearly well supported and loved by her mother, has had her own struggles in recent years and they may well - and they appear to have been precipitated by the circumstances that, as I said, may well have led her to want to have
a connection with the biological father she had never previously met. She is 19, and lives with you. In fact the two of you live rent-free with your grandmother. She is not only, at this stage of her life, unable to work, but according to the medical reports that have been shown to me, unable to be left uncared for, unsupervised. That is by and large because of the circumstances that you are now aware of, but were not aware of at the time that she sought out connection with Mr Barlow.
19 Whilst the circumstances that have led to your daughter's distress were not of your making and were not known to you, the burden for a mother carrying the knowledge that she was not able to protect her child, is a terrible one. You have clearly coped with that with compassion and with devotion to your daughter.
20
Had it not been for your daughter's circumstances and the extraordinary connection between her desire to reconnect with Barlow and the connection to your becoming involved in the offences, I would have considered that the needs of punishment, denunciation and general deterrence would have required
a sentence involving a punitive element and I would have been satisfied that
a community corrections order, involving supervision and unpaid community work to be appropriate.
21 As I said in the course of discussion with your counsel, I did not consider supervision necessary to assist in your rehabilitation. Your circumstances and the way you have lived your life indicate that you are unlikely to offend again in that or any other way, so you do not need to be specifically deterred and your rehabilitation does not need coercive encouragement. Supervision may have been appropriate as part of the punitive element of a sentence, along with unpaid community work, but your daughter's life and the integral role you play in looking after her, in my view, mean that I have to consider whether those punitive needs must be served, despite her circumstances, or whether this is the case properly for the exercise of mercy.
22 So had it not been for your daughter's circumstances and how you came to be involved in this, I would have sentenced you to a community corrections order. But because of that, I consider it an appropriate case to exercise mercy, or to show mercy to you. I consider the circumstances are extenuating and exceptional.
23 I therefore propose to adjourn this matter, without conviction, upon your undertaking to be of good behaviour for a period of 12 months and upon you agreeing to comply with all lawful directions of your general practitioner in relation to your mental health treatment.
24 Are you prepared to consent to an order in those terms, Ms McIntosh?
25 OFFENDER: Yes, Your Honour.
26 HER HONOUR: Very well.
27 On the charge of assist offender, you are to be released on an undertaking, commencing today, for a period of 12 months.
· You must be of good behaviour during the period of the undertaking.
· You must attend before the court if called upon to do so, during this period of 12 months' adjournment.
· You must comply with all lawful directions of your general practitioner in relation to your mental health treatment.
28 If you break the conditions of this undertaking, you may be punished for this offence of assist offender, you may be punished for failing to be of good behaviour and you may be fined. Do you understand that?
29 OFFENDER: Yes, Your Honour.
30 HER HONOUR: All right. I will ask Mr Johnston to bring the undertaking down to you and ask you to sign it.
31
Just before I do that, I have been asked to make an order for the provision of
a forensic sample under s.464ZF of the Sentencing Act. I do not propose to make the order. The nature and circumstances of Ms McIntosh's involvement and her past good history and her subsequent good history, in my view, do not justify the making of such an order.
32 MR JOHNSTON: As Your Honour pleases.
33 MR BOURKE: As the court pleases.
34 HER HONOUR: All right, I have signed the undertaking also, Ms McIntosh. When a copy of that has been made and provided to you, you will be free to leave the court, but you can leave the dock now.
35 OFFENDER: Thank you, Your Honour.
36 MR BOURKE: Your Honour, can I just return to the issue of the forfeiture order for the two mobile phones?
37 HER HONOUR: Yes.
38 MR JOHNSTON: It is not opposed, Your Honour.
39 HER HONOUR: I make the forfeiture order in respect of the two mobile phones.
40 MR BOURKE: Thank you, Your Honour. My instructor left the draft, the written order for Your Honour to sign it, thank you.
41 HER HONOUR: Well I have indicated I will make it when it is provided to me. I will sign it in chambers.
42 Thank you for your assistance. Thank you, Mr Bourke for your assistance.
43 MR BOURKE: As Your Honour pleases.
44 HER HONOUR: Ms McIntosh, I hope I do not see you back before me for breach of that order and I hope that you and your daughter will overcome what has obviously been a very difficult time for both of you. Seek and get the help and support that is available to you and continue to live the flourishing life that the two of you had been living until this interruption occurred. You have shown enormous resilience to date and I am sure you will be able dig deep and find it again. Thank you.
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