Director of Public Prosecutions v McLean

[2022] VCC 1454

IN THE COUNTY COURT OF VICTORIA

AT BALLARAT

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00036

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW MCLEAN

---

JUDGE:	HER HONOUR JUDGE KARAPANAGIOTIDIS
WHERE HELD:	Ballarat
DATE OF HEARING:	30 August 2022
DATE OF SENTENCE:	31 August 2022
CASE MAY BE CITED AS:	DPP v McLean
MEDIUM NEUTRAL CITATION:	[2022] VCC 1454

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – conduct endangering persons – COVID-19 pandemic – Rehabilitation prospects dependent on drug and alcohol use.         

Legislation Cited: ss 23 Crimes Act 1958 (Vic), s 5, 6AAA, 48CA(2), 89A Sentencing Act 1991.

Cases Cited:Phillips v The Queen [2012] VSCA 140; R v Lefebure [2000] VSCA 79; R v Tran [2002] VSCA 52; Worboyes v The Queen [2021] VSCA 169.

Sentence:                  Convicted and sentenced to a 12 month Community Corrections Order.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	A. Moore	Office of Public Prosecutions
For the Accused	A. Chernok (Plea) N. Freijah (Plea and Sentence)	Emma Turnbull Lawyers

HER HONOUR:

1Matthew McLean, you have pleaded guilty to one rolled up charge of conduct endangering persons contrary to s23 of the Crimes Act1958 (Vic). This carries a maximum sentence of 5 years’ imprisonment.

2You have also agreed to this Court hearing and have pleaded guilty to two summary offences, unlicenced driving and failing at the scene of an accident to give your name and address. The maximum sentence for these offences are, in turn, 60 penalty units or six months’ imprisonment, and five penalty units or 14 days’ imprisonment. 

3Your case proceeded as a sentence indication on 29 August 2022.  On the basis of the indication, you entered a plea of guilty and were arraigned on 30 August 2022.  At the plea hearing, both Counsel relied upon the submissions they had made at the earlier indication hearing.  In sentencing you I have therefore taken into account the submissions and materials referred to, and relied upon, at both hearings. 

Circumstances of the offending

4The full circumstances of your current offending are set out in the Summary of Prosecution Opening dated 29 August 2022, marked as Exhibit A on the plea.

5In brief, on 17 December 2019 you telephoned your friend, Nicholas Ryan, and told him that you needed to get to Ballarat and asked him to pick you up.  He borrowed his grandmother’s vehicle, a black Suzuki SX4, registration ZQL60 (‘the Suzuki’). 

6You met with Mr Ryan and you went to Ballarat in the afternoon and met up with some of your friends. You were driving around with Mr Ryan and another one of your friends as passengers.  You were unlicenced at the time (Summary Charge 3 – Unlicensed Driving)

7At about 10.00pm you were driving in the central part of Ballarat when you saw a Toyota Hilux Ute, registration OXB820. You began chasing it because you thought the Ute had flashed you.  The driver of the Ute, Mr Aidan Johns, drove along Sturt Street to get away. Mr Johns thought he was going to be rammed and so he drove on the wrong side of the road. You followed him onto the wrong side of the road and continued to chase him into oncoming traffic.  Several cars had to get out of the way. Constables Farrell and Sheriff were in a marked divisional van on Sturt Street, heading west, when they observed the Ute and the Suzuki travelling in the wrong direction towards them.  The Ute appeared to veer right to get away from you, however you proceeded to drive at the police vehicle, only swerving to miss it at the last minute.  Police turned on the van’s lights and sirens. 

8I note here that at the plea hearing I was also provided with a map by the prosecution indicating the path travelled by your vehicle.  As raised by Mr Chernok on your behalf, there is some conflict between the map and the plea opening and what is contained in the statement of Officer Sheriff.  Officer Sheriff deposes ‘Constable Farrell has had to take evasive action to avoid being rammed by the black Suzuki, by braking and turning right into Ripson St Ballarat.’ This point was not raised to traverse the plea and the plea opening was accepted by your Counsel.  Rather it was raised in support of the submission that your plea is valuable, particularly when viewed in light of a prosecution case, marked by such inconsistencies.  I will return to this shortly.

9Continuing with the summary of your offending, on seeing the police lights Mr Ryan was telling you to stop and your friend said ‘there’s cops behind us’. You continued at a fast rate of speed.  You turned left across oncoming traffic and headed north on Ascot Street North.  You drove at a fast rate of speed through a give-way sign at the t-intersection of Ascot Street North with Mair Street. You failed to give way and consequently the front passenger side of the Suzuki collided with the passenger side of a Holden Commodore, registration TWQ783.

10Your driving from when you commenced to chase the Ute to when you drove through the t-intersection constitutes Charge 1, which is a rolled up count.   

11Despite the collision with the Holden Commodore you continued driving with smoke blowing out the front of the vehicle.  The car was badly damaged, so you stopped it in Wendouree Parade.  You ran from the car and rang someone to pick you up (Summary Charge 5 – Fail to give name/address). 

12You were later arrested on 20 December 2019 and declined to be interviewed.  Mr Ryan subsequently made a statement implicating you. 

Gravity of the offending

13In formulating an appropriate sentence to be imposed I must have regard to the gravity of your offending and also the maximum available penalty.  As already noted, Charge 1 comprises a number of different endangering acts on your behalf, including:

(a)   Chasing Mr Johns, the driver of the Ute, effectively forcing him to drive on the wrong side of the road and then following him on the wrong side of the road into oncoming traffic. Several cars had to get out of your way, including the marked divisional police van, that you drove towards and only narrowly missed.

(b)   Driving at a fast rate of speed through a give-way sign, failing to give way, and then colliding with another vehicle. 

14Your reckless conduct on this occasion was obviously grave. While not the worse-case example, your driving was irresponsible and reckless.  I accept that it sits at the mid-range for such offending, as suggested by Mr Moore for the prosecution. While I have not received any victim impact statements it is clear that a number of different road users, including police who were just doing their job, were exposed to your dangerous acts and unacceptable conduct.

Plea of guilty and remorse

15As already noted, your plea of guilty follows a recent sentence indication, just before your trial was due to commence. While it is not an early plea, it nevertheless entitles you to a discount in sentence. Even though your trial was only estimated to be of short duration, I accept that there is utilitarian benefit in your plea and that it demonstrates a willingness on your part to facilitate the course of justice. I note, and take into account, that it is also a plea entered during the currency of the pandemic.[1]

[1] Worboyes v The Queen [2021] VSCA 169.

16Mr Chernok submitted that the Crown case was not a particularly strong one and that this has some relevance to your plea. On my assessment of the case, this is a reasonable submission.  The principal witness as to the issue in dispute, that is your identification, was criminally concerned and would likely have attracted an unreliability direction.  While this does not impact on the utilitarian value of your plea, I have taken this into account in informing my assessment of your acceptance of responsibility and willingness to facilitate the course of justice and your prospects of rehabilitation.[2] 

[2] Phillips v The Queen [2012] VSCA 140.

Personal circumstances

17As for your personal circumstances, you are now 31 years of age, born in December 1990. 

18You grew up in Ballarat and your parents separated when you were only quite young.  I was told that your background was otherwise relatively unremarkable.  You completed up to Year 10 and then you had some subsequent periods of stability and work.  You have also had a couple of long term relationships that have borne children. 

19Over the years, and from your late teens, your stability and progress has been impeded by your drug abuse.  In the past you have used methamphetamine and have also struggled with an abuse of prescription drugs, such as benzodiazepine. 

20You were supported in Court by your mother and aunt.  Your mother suffers from a rare disease of pulmonary sarcoidosis, which involves a build-up of scar tissues on her lungs and heart.  Her prognosis is very poor and when you are in Ballarat you spend time looking after her.  Otherwise, she is supported by her sister, your aunt. 

21You currently live with your father in Yarraville, though I note that you are restricted, by way of an intervention order, from being present at the house when affected by drugs or alcohol. Your father is a truck driver and through his contacts can apparently help get you a job.  I was also told that your brother has recommended you for employment with his previous boss and there is a prospect of work in the next few weeks. You have a reasonable history of working, including in steel frame construction. You have relevant construction licences, including a forklift licence, your white ticket and your elevated work platform qualifications.   

22Presently you are not working.  In more recent times you have been focused on addressing your long term drug addiction and issues and on building and nurturing the relationship you have recently developed with your young children.   

23You have two young daughters from a previous relationship.  They live with their mother in Portland and are aged five and six.  While the relationship with your ex-partner was initially strained it has improved in recent times. You are now enjoying contact with your daughters and are motivated by them in your recovery. 

24You also have a 12 year old son but unfortunately you don’t presently have any contact with him. 

25On 24 May 2021 you were sentenced in the Ballarat Magistrates’ Court for a range of matters and received a combination sentence of time served and a community corrections order (“CCO”). I was told that initially your compliance on the order was not particularly good, which is likely reflected in the fact that it is returning for breach proceedings to the Sunshine Magistrates’ Court. For the purpose of the current proceedings I obtained an assessment report from Corrections. The report refers to the pending breach and to your poor compliance. On your behalf, Mr Chernok submitted that over time, your compliance and motivation did improve, to the point where you independently and actively engaged with Odyssey House. Mr Chernok also indicated that previous inquiries had been made on your behalf with Windana. Once this matter is finalised there will be an attempt to reengage with them to give you an opportunity to join a specialist program more tailored to your needs. 

26I was also told that you have a history of attention deficit hyperactivity disorder (“ADHD”) and anxiety and depression and currently you receive medication that is supervised by your General Practitioner. 

Prior criminal history

27You have an extensive prior criminal history and you have received a variety of dispositions, including immediate imprisonment and several previous CCO’s.  In particular, I note that you have a lengthy history for driving related offences.

28I take into account your prior criminal history, in particular in my assessment of your prospects for rehabilitation and the weight to be given to specific deterrence. 

Factors in mitigation

29Your Counsel relied upon a number of factors on your behalf including your plea of guilty and your recent attempts and efforts towards rehabilitation. 

30Another important factor that was raised and that I take into account in sentencing you is the delay in this matter.  Your offending is now somewhat dated.  Within this period you have started to demonstrate an ability to commit yourself to your rehabilitation.  I also take into account that this matter has been a source of ongoing anxiety and stress for you.  There has been uncertainty as to your future and the looming prospect of imprisonment, which has been compounded by your mother’s very ill state of health. 

31Mr Chernok also relied upon the principle of totality in your case.  Just a couple of days after this incident you were arrested by police in relation to an unrelated matter.  This is the case that was heard on 24 May 2021. On that day you pleaded guilty to charges of theft of motor vehicle, dangerous driving while pursued by police and unlicensed driving and you were sentenced to 331 days imprisonment and a CCO of eight months. The term of imprisonment was wholly reckoned as served and the CCO had attached to it supervision, treatment and rehabilitation and program conditions. 

32While the matters before me are discrete and separate offending, I accept that the totality principle is an important consideration in your case.  You have already been dealt with, and served, a substantial sentence for offending that occurred only a couple of days after the present charges.  As Mr Chernok submitted, given the nature and proximity of the offending, they are capable of being viewed as a series of offences. In the circumstances of your case, the principle of totality requires that I consider your aggregate criminality and the overall proportionate, that is, just and appropriate, sentence that should be imposed.  It was also submitted on your behalf that the term of imprisonment you served on remand was more onerous given it was at the height of the pandemic when prisoners were held in more restrictive and burdensome conditions.

Prospects of rehabilitation

33In terms of your prospects of rehabilitation, given your extensive prior history, I consider that it is largely contingent on you maintaining your commitment to your rehabilitation.  Simply put, you need to stay off drugs and stay focused on work and family.  The CCO assessment report that I obtained classified you as a high risk of reoffending. It also noted that you’ve previously expressed similar motivations to change. 

34On my assessment, I accept that you are presently committed to trying to make and maintain important changes in your life. I consider that your prospects of rehabilitation are substantially improved by the family supports you have; your current accommodation with your father; the availability of work; and the ongoing relationship you enjoy with your young daughters.  Mr Chernok submitted that you now recognise that you need to change; you want to be a good father to your daughters and you want to support your mum while you still have the chance.  Clearly, there is further work that you need to do and I intend that the sentence  I impose will supervise and support you in your rehabilitation. 

35In your case, I also consider that your rehabilitation is likely to be promoted by taking steps to obtain and secure your licence. It would assist with your family responsibilities, particularly in visiting your mother in Ballarat and your children, and it would also help you secure and maintain work.  On my reading of your prior history, you have effectively been disqualified from driving or obtaining a licence since approximately late 2011, with only a few short periods in between. I note that your licence was cancelled and disqualified on 24 May 2021 for a period of 12 months, after you had already served close to one year in custody. There are no mandatory licence disqualification periods that apply in your case and, having regard to all the circumstances, I don’t propose to exercise any discretionary powers to interfere with your ability to obtain a licence.[3] However, as stated during your plea hearing it is a privilege to have a licence and it comes with responsibilities and expectations. But for the unique circumstances and considerations in your case, in particular totality, delay and your rehabilitation, your driving on this occasion would ordinarily have resulted in the revocation of this privilege.[4]

[3] See s89A Sentence Act 1991 (Vic).

[4] R v Lefebure [2000] VSCA 79; R v Tran [2002] VSCA 52.

Sentencing principles

36The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.

37I take into account the sentencing guidelines referred to in s5 of the Sentencing Act, where relevant to your case and I’ve also had regard to the sentencing landscape for the offence of conduct endangering persons.  

38I also take into account the principles of totality and proportionality, as already discussed, and also the principle of parsimony. The principle of parsimony requires that I not impose a term of imprisonment if the sentencing purposes can be met by another, less punitive form of sentence and that I give proper consideration to non-custodial options. 

39On your behalf Mr Chernok submitted that a CCO is appropriate and that the Court should be mindful, in setting its duration and terms, to not impose a  ‘crushing’ sentence, particularly in light of the 24 May 2021 disposition. Mr Moore on behalf of the prosecution did not oppose the defence submission as to the imposition of a CCO and accepted that, in all the circumstances, such a sentence is within range.

40As I’ve already noted I had you assessed for a CCO. You were assessed as unsuitable for an CCO. The position of Corrections is understandable given your poor history of compliance and your pending breach. They also express concern as to your level of insight and your reference to recently smoking cannabis.  I’ve given this careful consideration and remain of the view that a CCO is the appropriate disposition in your case. This offending is dated and occurred prior to the imposition of your last CCO. I also regard it as in the best interests of the community to maximise your rehabilitative prospects.   

41After considering all relevant factors, as I indicated previously, I will place you on a CCO. It should be clear from my reasons that I’ve had regard to totality and all the other mitigatory factors advanced on your behalf.  However, I also have to balance these with my assessment of the gravity of your offending on this occasion and other relevant matters, including your criminal history. I consider that, in the circumstances, the CCO I impose needs to provide for both punishment and rehabilitation.

Sentence

42On all charges you are convicted and sentenced as follows. You will be placed on a 12 month CCO with the following conditions: supervision; assessment and treatment for drug abuse or dependency; assessment and treatment for mental health; and programs to reduce the risk of reoffending. I am also going to impose 80 hours of community work. Pursuant to s48CA(2) of the Sentencing Act, all of those house, are to be offset against any treatment and rehabilitation you undertake. 

43I’m not required to make a s6AAA declaration and I don’t propose to.

- - -