Director of Public Prosecutions v McLean

[2022] VCC 1219

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00830

DIRECTOR OF PUBLIC PROSECUTIONS

v

COREY McLEAN

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JUDGE:	HER HONOUR JUDGE SYME
WHERE HELD:	Melbourne
DATE OF HEARING:	25 July 2022
DATE OF SENTENCE:	1 August 2022
CASE MAY BE CITED AS:	DPP v McLean
MEDIUM NEUTRAL CITATION:	[2022] VCC 1219

REASONS FOR SENTENCE

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Subject: Exposing an emergency worker to risk by driving - Damaging an emergency vehicle - Theft

Catchwords: Bizarre offending - High degree of recklessness – Escalating drug use – Methamphetamine and GHB - Accused falling asleep during proceedings – Fractured arm in the course of the proceedings – Significant criminal and driving history - Prior compliance with CISP – Supportive family – Significant custody management and parole conditions in the interests of rehabilitation.

Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).

Cases Cited: Smith v The Queen [2020] VSCA 165; Hutchinson v R [2021] VSCA 235.

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. Fairfield	Ms E. Washington - Office of Public Prosecutions
For the Accused	Mr P. Bloemen	Mr C. Nikakis - Haines & Polites

HER HONOUR:

1Corey McLean was found guilty of the following three offences:

Firstly, that on 26 December 2019, at West Footscray, he stole a Toyota Kluger motor vehicle belonging to ToyLex R Us.  The maximum penalty for that offence is 10 years' imprisonment.

Secondly, on the same day at the same place, Mr McLean drove the same motor vehicle in the vicinity of Sergeant Lubinsky without lawful excuse. Mr Lubinsky, an emergency worker on duty, was recklessly exposed to a risk of safety and Mr McLean knew, or was reckless as to whether Mr Lubinsky was an emergency worker. Mr McLean committed this offence in connection with an offence against s 317AG of the Crimes Act and/or, at the time, the vehicle was stolen, and Mr McLean knew it was stolen or was reckless as to whether it was stolen. The maximum penalty for that offence is 10 years' imprisonment.

Lastly, at the same day, at the same place, Mr McLean recklessly drove the same motor vehicle and in doing so, damaged an emergency vehicle whilst knowing or being reckless as to whether the vehicle was an emergency vehicle and did so without lawful excuse.  The maximum penalty for that offence is five years' imprisonment.

2He has also pleaded guilty to summary offences this morning which I will take into account in any sentence imposed for them. I indicate that any sentence imposed will be served concurrently with the orders that I am going to make shortly.

3The charge of aggravated reckless exposure of an emergency worker is one that falls within s 5A of the Sentencing Act as a Category 2 offence.  Therefore, a court must impose a sentence of imprisonment without a CCO unless certain circumstances are satisfied.  None are submitted.

Circumstances of offending

4The circumstances of this offending are contained in my reasons for decision dated 18 July 2022.  In assessing the objective gravity of the offending, I found that the degree of recklessness was high, both in the manner of driving, and the risk to safety of an emergency worker. 

5In this context, however, it is acknowledged that the driving, as reckless as it was, took place in a relatively confined space and no evidence was given as to the estimate of the speed that the vehicle was going when Mr McLean collided with the police officer's car. 

6The only evidence is that he accelerated in a confined space.  I am not addressed on any matters that make the offending less serious and those matters are dealt with in my reasons for finding guilt.

Personal circumstances

7When referring to the personal circumstances of Mr McLean, much of his background is contained in the submissions of counsel and are not in dispute.

8It is noted that Mr McLean is now 26 years of age and will be 27 shortly.  The offence occurred when he was 24 years of age.  He has a close and supportive family, and he is the second oldest of four children. Both his mother and father work and there is no indication of any antisocial activity. 

9I note that in 2019, Mr McLean was convicted of assaulting his older brother, but I am told that the relationship has now improved. The reference provided from his mother this morning shows the degree of concern that his family has for Mr McLean and shows the degree of support that they give him, both of which are very important considerations.

10In relation to education and employment, I note that Mr McLean finished Year 10 and left school to do an apprenticeship in cabinetmaking.  He was employed at a place called Belleview Kitchens, where he completed his apprenticeship as a cabinetmaker.  I am told that he lost his employment in 2018 due to tardiness and sloppy work.  I am told that this was due to escalating drug use at the time. 

11In relation to Mr McLean’s drug and alcohol abuse, I am told that he commenced using methamphetamine when he was 15 years old. Smoking was the method of ingestion.  I am told that this use increased at around 19 years of age when it became a daily habit.  I note that even though this was around 2015, his employment was not terminated until 2018, indicating an unusual degree of support from the employer.  I note that this is the same employer who extended employment to him in recent times.  I note that he was also taking up to 50 millilitres of the drug, GHB, per day.

Moral culpability

12In assessing Mr McLean’s moral culpability, I have no information on which to base a finding that there is anything in his background, mental health presentation, cognitive issues or otherwise that would impact on a finding of his moral culpability for the commission of these offences.  Looking at his past admitted drug use, the reports from the CISP program and, I must say, the bizarre circumstances of this offence, it is possible to draw an inference that he was likely drug affected at the time and I have not received submissions to the contrary.

13I accept that Mr McLean was well in the grip of a drug addiction at the time these offences occurred. From all of the evidence before the court and in submissions from counsel, it is clear that after he felt boxed in by the two police cars, possibly because he was driving a stolen car, he acted in the way he did.

14I note that previously, when he was driving a stolen motor vehicle in compliance with all of the road rules, he was doing so to quite possibly not draw attention to himself.  He therefore had sufficient understanding of the need to avoid police officers to drive in that safe manner.  When there was only one police car behind him he did nothing to attract their attention.  However, when the two police cars were obviously close to him and the emergency lights were on, he took, as I found in my judgment, a positive act in order to avoid them.

15I do not find beyond reasonable doubt that he drove it purposely in a way to ram the police cars.  However, as I explained in my reasons, I found that his level of recklessness was high and his intention, as far as I can tell from the evidence, was to avoid being apprehended.  Whether it resulted in damage to the police car and danger to the police officer or not, it is an offence of significant objective seriousness.

Procedural history

16At the conclusion of this episode, Mr McLean was refused bail and remanded in custody between 26 December 2019 and 9 June 2020.  Some of those
pre-sentence detention days have been credited on other matters.  He was released on bail in June 2020 on the condition that he comply with CISP conditions. 

17The CISP report tells me that he largely complied. Additionally, the final progress report dated 4 March 2021 said that he had been employed and not using as at that date. This is, at least, as far as they were aware.  He received a number of counselling sessions and was urged to engage in relapse prevention strategies.  I note he completed all the CISP program satisfactorily.

18The CISP report writer indicated that Mr McLean had responded well with case management by attending appointments and that he demonstrated considerable insight into the impact of substance abuse on his life.  As at the date of the report, he was being monitored by phone contact.  As at March 2021, he was reported to be travelling well.  I do not know if his family have got any different view on that or not.

19It is noted, however, that he was re-employed at Belleview Kitchens in 2020 and remained there until early 2021.  Thereafter, I am told that he assisted at a friend's business until early 2022.  This trial commenced in July 2022.  It was submitted that the delay caused him great stress and it is suggested that the stress may have been a factor in his relapse into drug use, which is conceded.

20I have observed that he does have significant family support.  His father and mother supported him throughout the course of the trial.  This support will be invaluable when he is released from custody.

Ongoing drug-use

21I did, however, note throughout the course of the trial that from time to time
Mr McLean appeared to be not able to maintain his attention and was observed to be sleeping from time to time.  The court proceedings were temporarily ceased in order to assist him.  I also observed, from time to time, that he appeared to be physically very uncomfortable maintaining his seat in the back of the court. 

22Experience in court over many years suggests to me that
Mr McLean was presenting as suffering from either withdrawals from drug use or showing signs of continued drug use, especially methamphetamine.  His inability to maintain consciousness throughout the course of the trial strongly points to a relapse in his drug use.  This has very recently been conceded.

23This observation is again supported by his employment at Belleview Kitchens coming to an end at the conclusion of the formal CISP involvement and his outside work ceasing completely in early 2022.  The court can draw an inference from its own observations, the CISP report and the work history to support a high suspicion that drug use has recommenced, and I do not have any submissions otherwise.  This is a matter that Corrective Services will be asked to take note of in due course.

24I note that during the significant delay since he completed the CISP program as at the date of trial, Mr McLean has been residing with his parents.  Just after the trial he was involved in an accident, I am told, at home, resulting in a fracture to his arm.

25I accept that he has been able to demonstrate an improvement is substance abuse in the past.  I am told he is again not only willing but keen to try again.  The last time he was released from custody he was successful and at that time he had been in custody for six months before his release.  He was reportedly drug free when released.  It seems that his period in custody acted as a type of residence program in which the rule of no drug use was enforced.  I accept that such a program, which consists of counselling and other assistance, is preferable to enforced abstinence without assistance. 

26I recommend, strongly recommend, that while he is in custody, he would benefit from assistance via group programs or any other drug treatment programs that are currently available in custody.  I will further recommend that conditions on parole include either a residential rehabilitation condition or, at the very least, conditions to attend counselling and submission to urine testing as part of future parole conditions. 

27I note that when drug-free, Mr McLean is capable of gainful employment and, what is more, his very employment in a skilled profession.  Assistance to obtain such employment may be included in the parole conditions but only as a secondary requirement to cease drug use and to prove that he remains drug free.

28His recent experience shows that employment alone is not sufficient for him to maintain a drug free lifestyle.  A drug free lifestyle appears to be a minimum requirement to remain crime free.  Having said that, I accept that circumstances which can result in offending of this nature are varied.  Programs addressing associates that he might associate with and his attitudes regarding his offending are also called for.

Comparative cases

29I have been given a list of potentially relevant cases by way of comparison.  Most of those cases deal with reckless driving over a significant period of time but many of them were sentenced after a plea of guilty, allowing in those cases the court to offer a significant discount for that early plea.  In some cases, such as the 2020 case of Smith, the Victorian Court of Appeal observed that the offender had real moral culpability considerations due to a probable cognitive deficit.  In all cases, the manner of driving appeared to be aimed at the same outcome as Mr McLean's claim, that is, pushing a way through emergency vehicles in order to escape being apprehended.

30In Smith, the manner of driving was more serious, more sustained and faster over an extended period of time, but the Court of Appeal did not interfere with a 51-month base sentence after a plea of guilty was entered.  The objective circumstances were more serious with the judge finding them to be about mid-range and, as I said, there was an early plea of guilty.  None of the cases to which I have been referred have a direct correlation to the circumstances facing you, Mr McLean, but are useful cases by way of comparison.

31I observe that after appeal, sentences of between two and four years were imposed for those cases where there was no issue before the court of a reduction of moral culpability.  In the case of Hutchinson, for example, it was accepted that the appellant's control of the car was compromised due to the tyres being deflated by police action; a lower degree of recklessness than your case.  However, the circumstances in that case were more serious.

Criminal history

32I note that you have a significant criminal history, including driving history, dating back to 2014.  These prior matters do not aggravate the sentence to be imposed today but I note a pattern of driving which includes a number of speeding matters, and also a 2016 matter of failing an oral fluid test.  All matters in the past, up until the recent times, have been dealt with by way of fines and disqualification periods but unfortunately, there were also charges of driving without a driver's licence where your driver's licence was suspended.

33Apart from driving and drug related matters, which continued up until
January 2019, there is, as I have observed already, a 2018 matter relating to unlawful assault; offending which resulted in the contravention of a family violence order. This event was combined with drug related and driving matters. 

34Your record in total must deprive you of leniency for this matter.  You have had considerable chances given to you by courts over the years to learn from the sentences that have been imposed and unfortunately, nothing has been successful so far.

35Your considerable chances given to you by the court via sentences and via bail have included entry into the CISP program, which I have already mentioned.  I am aware that addiction to substances such as methamphetamine is a really difficult problem to solve.  I am aware that people attempt to resolve their drug issues many times.  It is a frequent problem.  It is no doubt that for that reason, you were urged to engage in relapse prevention strategies when CISP finished.  I am aware that during the course of this trial, your anxiety was no doubt heightened.  Your counsel tells me that you were aware that if you were found guilty of the offence for which I have found you guilty of, an imprisonment sentence would be likely, no doubt, inevitable.

36The matter proceeded to trial by judge alone.  Some matters were agreed and not in issue.  The efficient presentation of evidence in this case, no doubt, on your instructions, allows for a small degree of consideration in your favour, as the efficient presentation of evidence has assisted in the administration of justice.  Finally, I acknowledge the purposes of sentencing as set out in the Sentencing Act, sometimes, usually, which pull in opposite ways to each other.

37Punishment must be just in all the circumstances.  It must address both general and specific deterrence, but on the other hand, it must also assist as far as possible with rehabilitation.  It must also denounce the conduct on behalf of the community. It also requires real consideration of the protection of the community from you, and from behaviour like this.

Further considerations

38I have been asked to take into account what is referred to as the Renzella principle, that is, a further approximately three months, to which you were sentenced effectively with some time served on offences which occurred in March 2019, relating to traffic related matters.  It is submitted that had they been dealt with together the sentences imposed on those matters may have been concurrent.  I disagree.  They were offences which were completely separate, related to a different vehicle and they occurred some nine months before this offence occurred.  In my view, cumulation of some period would have been appropriate.  However, I note that there are approximately a further 75 days or so of pre-sentence detention which will be calculated off this sentence that I impose.

39I accept that the same course of conduct resulted in convictions for Counts 2 and 3, that is, the two s 317 offences. The defence contend that an aggregate sentence is appropriate.  The prosecution does not object, and I agree.  I accept that as the theft of the motor vehicle was an alternate precursor for the s 317AF offence as well, the accumulation should be slight, but nevertheless there.

40In terms of objective seriousness, for reasons I previously gave, the degree of recklessness is high, but as I have already said, the event of offending continued for a relatively short period of time and, as your vehicle struck the police vehicle at the very commencement of that event, it became a relatively low speed and contained event.  On the whole, I find that this offending is lower than mid-range.

41I propose to make a finding that you should be eligible for access to parole much earlier than might usually be the case.  You, Mr McLean, have demonstrated that you can do well on a supervised drug program.  I recommend that prior to your release from custody, you participate in a supervised drug counselling program that will hopefully be available in custody. 

42The CISP program was a good start for you.  It showed two things: (1) that you are keen to involve yourself in rehabilitation; and (2), that you need considerably more assistance than a six-month program which does not involve enforcement and does not involve mandated testing. I recommend that any parole order contain both such requirements.

Custody management

43As to custody management, I note that your fractured arm will require further follow-up.  I have asked Mr Bloemen to make documents relating to the
follow-up available to Corrective Services. Further, I observe that
Mr McLean has, as his counsel concedes, been using substances up until possibly very recently indeed.  He is addicted to methamphetamine as far as I am aware.  I am sure Mr Bloemen will advise Corrective Services if he is addicted to anything else that Corrective Services should know about for their immediate in custody follow-up.  The more information that Custodial Services have, the better they will be able to manage Mr McLean's presentation in an immediate sense.

Sentence

44I will impose the mandatory disqualifications first because we know what they are.  The s 317AF mandatory driver's licence disqualification is 24 months.  I impose that it commences today. Regarding the theft of motor vehicle mandatory disqualification, the period is three months.  That will be served concurrently.

45In relation to Counts 2 and 3, that is the s 31AF and 317AG offences, I propose to sentence you to an aggregate sentence, sir, of 33 months' imprisonment. 

46In relation to the sentence of theft of the motor vehicle I propose to sentence you to a nine-month period of imprisonment, which will be accumulated three months on the base sentence which is the aggregate sentence. 

47The total term, therefore, is a 36-month imprisonment sentence. I propose to impose a non-parole period of 50 per cent.  That is an 18-month imprisonment term as a non-parole period; the minimum term you must serve before being eligible for parole. 

48As I have already said, I make recommendations that you be able to access drug treatment programs whilst in custody and that your parole conditions contain conditions for drug treatment testing.  Contact with associates should be monitored and testing for drug use throughout the period of your parole should also be maintained.

49In relation to the summary offences, I propose to sentence you to a period of one month imprisonment on the drive whilst disqualified charge. This is to be served concurrently with the base sentence. I impose no further penalty in relation to the committing indictable offence whilst on bail charge.

50Had it not been for your plea of guilty to the theft charge, I would have impose I would have imposed a 12 month term of imprisonment.  Have I forgotten anything else?

51MR BLOEMEN:  Just formally, Your Honour should announce that pursuant to s 18 there is a declaration of 75 days' pre-sentence detention.

52HER HONOUR:  Do we agree that 75 days is correct?

53MR BLOEMEN:  Yes, we do.

54MR FAIRFIELD:  Yes.

55HER HONOUR:  Very well, I declare that 75-days of pre-sentence detention have been served. For the family's benefit, there is a further approximately 14 months that Mr McLean must serve before he is eligible for parole.

56Anything else?

57MR BLOEMEN:  Nothing further, Your Honour.

58HER HONOUR:  All right.  I thank both counsel for their assistance throughout the judge alone trial and also for their comprehensive submissions.  It made it much quicker than it was otherwise going to be.

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