Director of Public Prosecutions v McLachlan

[2021] VCC 1085

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00556

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEAN McLACHLAN

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2021
DATE OF SENTENCE:	5 August 2021
CASE MAY BE CITED AS:	DPP v McLachlan
MEDIUM NEUTRAL CITATION:	[2021] VCC 1085

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Plea – Armed Robbery – Guilty plea - Imprisonment – Soft target – Victim Impact Statement - Mitigating factors – Covid - Verdins – Bugmy – Drug addiction – Psychological reports – Similar prior conviction – Criminal history – Huntingtons disease – Mercy – Deterrence – Community protection – Poor rehabilitation prospects – Deprived background

Legislation Cited:

Cases Cited: R v Marrah [2014] VSCA 119 – Bugmy v The Queen (2013) 249 CLR 571 – DPP v Hermann [2019] VSC 694 - Makrogiannis v Magistrates’ Court of Victoria & Anor [2021] VSC 190 - R v Verdins [2007] VSCA 102

Sentence: TES 2 years and 9 months imprisonment, 20-month non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Edwards	Office of Public Prosecutions
For the Accused	Mr B. Grimshaw

HIS HONOUR:

1Sean McLachlan, you have pleaded guilty to one count of armed robbery and three uplifted summary counts, being one count of contravening a conduct condition of bail, another count of contravening a conduct condition on bail on the next day and another count of committing an indictable offence whilst on bail.  The maximum penalties are set out in the prosecution opening, which I incorporate by reference.[1]

[1] Exhibit 1 on the Plea.

Circumstances of the offending

2The circumstances of the offending were set out in the prosecution opening, which was read in open court on the plea hearing, which was earlier in the year, and again I incorporate them by reference.

3In brief outline, the offending occurred in circumstances where you were on two different orders of bail and occurred on 21 January 2020 when you, using a syringe, held up a Subway takeaway restaurant in the Footscray area.

4You went into the restaurant and walked behind the swing door at the counter, holding the syringe, and said to the female attendant, effectively, 'Give me all the cash otherwise I'm going to hurt you'.  She took a step back and said she did not know the password.  You threatened her again, 'Give me the cash otherwise I'm going to hurt you'.  She tried to take the needle from you - the syringe.  You struggled for about 20 seconds and then you said to her, 'This is the last time, give me the cash'.  She was grabbing your arm at that point, as captured on CCTV footage.  You broke her grip and put the needle of the syringe towards her stomach.  She stepped back and told you she would open the cash register.  You pulled the needle back slightly and she then opened the register and gave you a number of notes and coins.  You grabbed the money.

5As you went outside she saw people embarking from a tram and shouted 'please help'.  You then went up the street, grabbed a taxi and went to Richmond, and you were found later that day in Richmond with some of the money remaining and I think there is a forfeiture order on the money to be sought.  The amount taken was $225.50.

6You were arrested later that day.  You have been in custody since that time.  During that time, you have served a sentence of about four months' imprisonment on an earlier matter.  You refused to be interviewed and, as I say, you have been in custody since that time.

Seriousness of the offending and moral culpability

7Before turning to assess the seriousness of the offending I must make reference to the Victim Impact Statement.  Your counsel accepted that the armed robbery would have been a frightening experience for the victim in the matter and that is evidenced by her Victim Impact Statement.[2]

[2] Exhibit B on the Plea.

8In the Victim Impact Statement, the complainant indicates that she is an overseas student who is obviously working to keep herself going while she was studying, and she indicates that it has seriously impacted her emotions.  She does not have friends or family to support her here, she gets stressed, her whole body goes numb.  She has trouble sleeping; it is an unforgettable experience that has left a long-lasting effect on her mind.  She cannot go out of her home, she feels scared.  She hopes such an incident would not happen to anyone else.  She said she is feeling very uncomfortable and insecure.  She had to take a break from her work because she was not ready psychologically.  She usually worked the opening shift but now she has had to change her shifts, and not having support from friends overseas makes the whole thing more traumatic for her.

9So, it is clear from her Victim Impact Statement that this offending would have had a very frightening impact on her and that is relevant to sentencing.  This was serious offending.  The offence was committed against a soft target.  There was some pre-meditation in that you had possession of a syringe.  You struggled with the complainant in order to encourage her to give you the money, all the while wielding a dangerous weapon, and it has had a significant impact on her.

10Your moral culpability is also enhanced by your prior convictions, which are numerous.  Your prior convictions for theft, assault and drug offending go back from when you were aged 19.  They include a prior conviction for robbery and numerous convictions for theft and shop stealing as well as street type offences and driving offences and assault.

11You have been sentenced to a number of Community Corrections Orders, suspended sentences and sentences of imprisonment.  You have breached a number of Community Corrections Orders and suspended sentences.  Most relevantly you were dealt with by Judge Stuart, of this court, for an armed robbery on 7 August 2015; almost six years ago to the day when you were sentenced to three years' imprisonment with a non-parole period of 20 months for a robbery on a soft target using a boxcutter with a similar modus operandi and then going to Richmond to score drugs at the end of it.[3]  

[3] Exhibit G on the Plea.

12On 28 November 2018 on charges of unlawful assault, dealing with property suspected the proceeds of crime and failing to answer bail you were sentenced to 60 days' imprisonment.

13On 9 April 2019 on charges of possession of heroin, failure to answer bail, theft from a shop, unlawful assault and gathering arms, you were sentenced to 48 days' imprisonment.

14On 16 August 2019 you were sentenced to nine months' imprisonment for attempted burglary and aggravated burglary and it was ordered that the sentence be served by way of a drug treatment order.  On two subsequent occasions part of the suspended sentence was activated.  Your last appearance, being committing this offence, was on 1 October 2019, when 14 days imprisonment was activated of the suspended sentence under the drug treatment order.

15The reports from the Drug Court indicate that you did not respond to the Drug Court order and in the period prior to committing the offence you had four admittances to emergency hospitals due to paranoia and chaotic presentations as well as overdoses.[4]

[4] Exhibit F on the Plea.

16Relevant to your moral culpability here, for this offending, is that you were the subject of a Drug Court order at the time and you were on two sets of bail when you committed this offence.  So, it is serious offending with a serious criminal record with aggravating features.

Matters in mitigation

17In a comprehensive plea your counsel put a number of matters in mitigation.  Many of the matters in mitigation mirror those put before Judge Stuart in his sentencing reasons and I incorporate them by reference.[5]

[5] Exhibit 1 on the Plea.

18In the present case you pleaded guilty.  The plea of guilty was an early plea.  You have obviated the need for a committal and trial and you are entitled to receive full credit for that.  Your plea of guilty was entered during the COVID pandemic and the Court of Appeal has recently instructed that a pronounced or perceptible amelioration of sentence should apply at the present time, other than in other times.  I will seek to give effect to that direction.

19You are also entitled to the benefit of remorse.  I accept that there is remorse; it is evidenced in the plea of guilty.  It is also evidenced in statements you have made to the medical examinations and I give that weight.

20You are now aged 35.  You had a very deprived upbringing.  Your parents separated when you were aged four.  Your father was a violent alcoholic.  Your mother was addicted to heroin and served several prison sentences during your childhood and early adulthood.  You attended numerous schools, you did complete Year 11.  Your mother died when you were aged 21 and this has had a major impact on you.  Your dysfunctional childhood progressed to a dysfunctional adulthood which included unemployment, homelessness and then lapsed into heroin and methamphetamine addiction, offending and being cycled through the criminal justice system.

21Your counsel relied on comments in the case of R v Marrah[6] in relation to your deprived upbringing and I take those sentiments into account.  The learned prosecutor did not dispute that issues of childhood deprivation can be relied upon to reduce moral culpability and referred to the recent decisions of Bugmy v the Queen[7] and DPP v Hermann.[8]

[6] [2014] VSCA 119.

[7] (2013) 249 CLR 571.

[8][2019] VSC 694.

22One matter in which the parties disagreed as to whether it did constitute a matter that must be taken into account is whether you were drug intoxicated at the time of the offence.  Your explanation for the offence to Ms Lechner was that you were drug addicted and were withdrawing and needed the money to obtain further drugs.[9]  Your counsel stated that you had a prescription for a heroin substitute but had not been able to fill it, as you had a dispute with one provider and could not re-engage with an earlier provider.

[9] Exhibit 3 on the Plea.

23The prosecution submitted that the court should find that your drug intoxication, leading to offending in order to obtain funds for drugs, was an aggravating factor, as you had full knowledge of what happens to you when you use drugs and then withdraw from drugs and that you are likely to engage in offending of this type. The prosecution referred to the decision of Judge Stuart, which shows a very similar offending pattern.  I am not prepared to find beyond reasonable doubt that you had full knowledge that when you were withdrawing from drug addiction, or unable to obtain a heroin substitute medication, that it was likely that you would commit criminal offending of this nature to satisfy your need for funds.  You told Ms Lechner that you had been begging and not obtaining funds and then you moved to commit the offence.

24I am prepared to find some reduction in your moral culpability due to your deprived upbringing, exposure to violence and drug use, lack of parental authority figures leading to substance dependence at an early age in response to the trauma and deprivation.  This is consistent with the sentiments quoted in Makrogiannis at paragraph 6, which I incorporate by reference.[10]

[10]Makrogiannis v Magistrates’ Court of Victoria & Anor [2021] VSC 190.

Prospects of rehabilitation

25Given your prior criminal record, your long history of drug addiction, your lack of any employment history and lack of significant family support other than a brother - your younger brother, who you are in contact with - I am of the view that your prospects of rehabilitation are dependent on whether you can be reclaimed from your long history of drug addiction.  The experience to date does not give any sense of optimism, thus, I would assess your prospects of rehabilitation as poor.

Verdins considerations

26A considerable part of the plea was directed to the applicability of various limbs of the case of Verdins.[11]  I am satisfied from the opinion of Dr Evans that you do have an appreciation of right and wrong and that on that basis there is not to be a reduction in your moral culpability for this offending.[12]  On the other hand, on the basis of the opinions of Dr Evans, Dr Tomlinson[13] and Professor Velakoulis[14] it is highly probable that you have Huntington's disease in its early stages.  This is a very rare condition and notwithstanding that the offence of armed robbery against soft targets calls for significant weight to be given to general deterrence, in the present case there should be some amelioration of that consideration in sentencing.

[11]R v Verdins [2007] VSCA 102.

[12] Exhibit 2 on the Plea.

[13] Exhibit 4 on the Plea.

[14] Exhibit 5 on the Plea.

27Your condition is also relevant to the burden of imprisonment under the principles of Verdins.  The developing symptoms of this condition are fully set out in the medical reports.  It is clear that as your condition develops you will need counselling and specialist care that is unlikely to be fully available in a prison system.  The uncertainty associated with your condition in a custodial environment, which itself is made more onerous by the COVID situation, will make a term of imprisonment significantly more burdensome for you than for a person without your underlying and developing condition and I must take that into account.

Current sentencing practices

28I was not referred to any specific comparable cases.  In the present case the prior decision of Judge Stuart is a good indication of current sentencing practices.[15]  It is clear from the cases in the Court of Appeal that sentences for this type of offending, against soft targets, often range in the area of two to four years' imprisonment.  No sentence is a precedent and the antecedents and circumstances of each offender varies significantly.  I do regard the sentence of Judge Stuart as an appropriate matter to consider as a yardstick in the present case, however it was given in circumstances where it appears that the question of whether or not you had manifestations of Huntington's disease was not referred to at all and it may well be that he would have imposed a lesser sentence had that been the case.

[15] Exhibit G on the Plea.

Purposes of sentencing

29The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range of factors such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim's, if any.  I am also required to balance the interests of the community in denouncing criminal conduct and the interests of the community in ensuring that as far as possible offenders are reintegrated and rehabilitated into society.

30In cases of this type, against soft targets, considerations of just punishment and denunciation are always to the fore, regardless of the personal circumstances of an offender.  Your deprived background, leading to early drug addiction and now, through no fault of your own, a manifestation of Huntington's disease, calls for some reduction in considerations of general deterrence.  Your failure to respond to sentences in the past elevates issues of specific deterrence.  Considerations of protection of the community are also a factor, given your prior failure to respond.

31Your medical condition is a matter that does evoke considerations of parsimony and, indeed, mercy.  I have had the opportunity to observe you in the course of the plea hearings and it is clear that the manifestations of your condition are very significant, which, in my view, makes service of a sentence of imprisonment significantly more burdensome than for a person without that condition.

32According to the medical reports, the various manifestations of your condition will only increase as time goes on.  You have a lesser life expectancy and your quality of life is going to diminish.  All those matters are such that you are to be accorded as much leniency as possible.

33Further, you have had a considerable period on remand during the pandemic and I am to declare 450 days pre-sentence detention, but you have been in custody literally for over 18 months, since January of 2020.  Over this period programs and visits have been restricted due to the pandemic and you have had to wait a considerable period until this day, when you are being sentenced for the offending.  This too is a burden that I take into account.

34Weighing the incommensurable sentencing considerations in this case is not without difficulty.  I have taken into account all the submissions made on your behalf by your counsel and the response submissions by the learned prosecutor.

35The sentence of the court on the charge of armed robbery is two years and nine months' imprisonment.

36On the three summary offences you are sentenced to 14 days' imprisonment on each of those three charges.  I direct that all sentences be concurrent.

37I order that you serve 20 months before being eligible for parole.

38I declare you have served 450 days pre-sentence detention.

39Pursuant to s6AAA of the Sentencing Act had you not pleaded guilty I would have imposed a total effective sentence of four and a half years' imprisonment with a non-parole period of three years.

40I will make the - is it a forfeiture order, you said?

41MS EDWARDS:  It's a forfeiture order just on the cash, Your Honour.

42HIS HONOUR:  I'll make a forfeiture order on the cash that was found on you when you were arrested.  Are there any other matters, Madam Prosecutor?

43MS EDWARDS:  No, Your Honour.

44HIS HONOUR:  Mr Grimshaw?

45MR GRIMSHAW:  No, Your Honour.

46HIS HONOUR:  I want to thank counsel for their assistance in this matter.  So, to explain the sentence to you, Mr McLachlan, I've sentenced you to two years and nine months' imprisonment.

47OFFENDER:  Yeah.

48HIS HONOUR:  And a non-parole period of 20 months.  I've taken into account all the matters that have been put on your behalf and, in particular, this issue of your Huntington's disease and the burden on you.

49OFFENDER:  Yep.

50HIS HONOUR:  And so, it's a matter for you as to whether you're able to get off the drug addiction when you do get out of prison, but you'll need a lot of help.

51OFFENDER:  Thank you.

52HIS HONOUR:  Adjourn the court.

53MS EDWARDS:  As Your Honour pleases.

54HIS HONOUR:  Well, the whole state's been put in lockdown, apparently.

55OFFENDER:  Thank you.

56HIS HONOUR:  Adjourn the court sine die.

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