Director of Public Prosecutions v McLean

[2018] VCC 46

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02353

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA MCLEAN

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 February 2018
CASE MAY BE CITED AS:	DPP v McLean
MEDIUM NEUTRAL CITATION:	[2018] VCC 46

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Revell
For the Accused	Ms C. Lynch

HIS HONOUR:

1Joshua McLean, you have pleaded guilty to the following offences:

·Aggravated burglary, which carries a maximum penalty of 25 years' imprisonment;

·Criminal damage, which carries a maximum penalty of ten years' imprisonment; and

·Resist emergency worker on duty, which carries a maximum of five years' imprisonment or a fine of 600 penalty units, or both.

2You admitted your prior criminal history.  You have prior matters in 2008 for making a threat to kill, assaulting police, threatening to damage property and attempting to damage property, for which you were placed on a community based order.  You have further prior convictions in 2015 and 2016.  In 2015, you were found guilty of assault, attempted criminal damage by fire and criminal damage.  In August 2016, you were found guilty of intentionally damaging property, committing an offence whilst on bail and criminal damage.  In 2016, you were again convicted of intentionally damaging property and then of failing to answer bail.  Although I was provided with no details concerning these matters, the nature of your prior criminal offending is extremely relevant to your offending on this occasion.  I will return to this matter later in this plea.

3The prosecution tendered a summary of prosecution opening on the plea.
A brief summary of your offending is as follows:

4You had been in a relationship with the victim in this matter, Adrienne Moon, until January 2017.  You have a daughter with Ms Moon.

5As at the date of offending, 26 February 2017, you had separated from
Ms Moon.  On that day, there was an exchange of text messages.  Your texting included a threat, “Addy won’t have a mother from today”.

6At about 2.30 pm, you went to Adrian Moon’s address in Reservoir.  You smashed the main bedroom window and climbed in.  When inside the house, you damaged further windows, the air-conditioning and a television set.

7The plea to aggravated burglary was on the basis that you entered into the property, intending to damage property, but you were reckless as to whether or not persons were present in the home.  Nevertheless, when you were inside
Ms Moon's home, you were yelling out, “Where are you?  Come out you bitch”.

8Unknown to you, Ms Moon and your daughter were hiding in the laundry.  It is fair to say that Ms Moon was terrified by your actions.  She texted her father, who immediately called the police.  Fortunately, you did not discover her there.

9You then turned on the gas knobs to the gas stove.  When you were interviewed by police, you told them that you could not find Ms Moon and your daughter and you decided to kill yourself.  You turned the gas on.  You said that you were going to sit there, torch the house and let it burn while you sat there.  You then told police that you, "Remembered something” and left the house, forgetting to turn off the gas knobs.

10When Ms Moon’s father arrived, the place smelled strongly of gas.  Fortunately, a neighbour had arrived shortly after you left and taken Ms Moon and your daughter to safety.

11Two days later, the police went to your mother's house.  You were present, but you ran away.  You were later apprehended by police.  You violently resisted arrest.  It took several officers and capsicum spray before you could be subdued.

12You have been on remand for this matter since your arrest on 28 February 2017.  You have now served 339 days pre-sentence detention, excluding today. 

13You pleaded guilty at the committal stage before any witnesses were called.
I accept that the plea of guilty has utilitarian benefit in this matter and that your sentence should be mitigated as such.

Analysis of your offending

14I turn now to an analysis of your offending. 

15It was submitted that the aggravated burglary committed by you was at the lower end of the scale of seriousness for this type of offending.  First, it was submitted, that it should be distinguished from those cases where confrontation was intended.  In your case, the indictment specifies that you intended to cause criminal damage, but you were reckless as to the presence of Adrienne Moon and your daughter.  Nevertheless, it is apparent that you were hoping to see Ms Moon and your daughter at the property.  You told the police in questions in the record of interview, commencing at say, at approximately Question 250 and following), that you went to the house, "To sort this thing out then and there".  Yet instead of using the door, you went through the window and when you could not find them, you thought you would kill yourself.  You said you remembered something and then you took off.

16Although you did not actually directly confront your ex-partner, you had no right to break into her house, to cause damage that you did and to then, very dangerously, leave the gas on.  Your actions are inconsistent with your words to the police.  A person who goes to "sort things out”, does not violently smash windows, damage property and then turn the gas on and leave.  In the circumstances, I consider this a serious instance of aggravated burglary.  It is all the more so for constituting a form of domestic violence against your
ex-partner.

17The offending in this case may not be at the higher end, as exemplified in cases such as Hogarth and following.  Nevertheless, it is a serious instance of this offending and your moral culpability is high.  These circumstances must attract the principles of general deterrence and denunciation.  Nor can I ignore the devastating impact this has had on the victim of your crime.  The Victim impact statement of Adrienne Moon was read to the court by the prosecutor.  Ms Moon was terrified by the aggression of your entry, your yelling and the damage caused inside the house.  A year after your offending, she remains devastated by your actions. She and all members of the community deserve to be protected from such forms of offending.

18I return now to your prior convictions.  It is true that you have never faced
a period of imprisonment before.  I acknowledge that you have not found it easy in your time in custody.  Furthermore, there was a significant gap in your offending.  However, in your prior matters, you have seven matters relating to damage to property and two assaults, one of which was an assault on police officers.  All of these matters are directly relevant to the charges you now face. Furthermore, your most recent conviction before this offending, was for damaging property on 15 September 2016, only five months before this offending.  Accordingly, a measure of specific deterrence is warranted.

Personal circumstances

19I turn out your personal circumstances.

20You are 29 years of age and born in July 1988.  You were born in New Zealand.  After a history of domestic violence, your parents separated when you were approximately five years old.  You recall that you and your sister were punished and bullied by your uncles.

21You moved to Australia with your mother and sister when you were 12 years of age.  Your mother re-partnered and had two further children.  That partnership ended when you were in your mid-20s.  Your mother then met David Moon, the father of Adrienne Moon.  It was that through that relationship that you met Adrienne Moon.

22Your school years were difficult and you reacted aggressively towards children if they teased or bullied you.  You told the psychologist, Alison Mynard, that you were "a slow learner”.  You left school at the beginning of Year 11 and took on an apprenticeship but did not complete it, as you had already commenced to use cannabis and then cocaine.  It appears that your drug use escalated.

23You told the psychologist that you commenced using cannabis and amphetamines at age 12.  Although you had periods of time away from drug use, you relapsed about three years ago and started using ice intermittently. You also used cocaine.  You told the psychologist, however, that you stopped drug use altogether when you met Adrienne Moon.

24You had a significant car accident a number of years ago, in about 2014, in which you injured your back and neck.  Although you worked in your 20s, you have been able to work since this accident and you have been receiving a Centrelink benefit.

25Your relationship with Ms Moon commenced in approximately 2015.  Ms Moon soon became pregnant to you.  Some strain must have been put on the relationship, as you were homeless together for a few months, prior to the birth of the baby.  You lived in a tent for a period of time whilst Ms Moon was pregnant, until you manage to get support from local agency to get housing.

26After the birth of your daughter, you felt that Ms Moon suffered from postnatal depression, as she did not appear to be coping.  Nevertheless, she refused to go to a doctor on your suggestion, but then took her father’s advice to go to
a doctor.  You felt that you were never listened to.  Three months after the baby was born, your relationship deteriorated and then you separated.  I gather that you have not seen your daughter since your offending in February 2017.

27The psychologist, Ms Mynard, provided a report after assessing you on
12 January 2018.  In her opinion, you suffer from a generalised anxiety disorder, a major depressive disorder and stimulus use disorders, which are now in remission in a controlled environment, that is, the stimulus use disorders. 
Ms Mynard also made a “provisional diagnosis” of attention deficit hyperactivity disorder.  Whilst Ms Mynard considers that your history reports are consistent with such a diagnosis and she considered that during testing she conducted, you were restless and easily distracted, it would be improper for me to conclude on these bases alone and without testing, that a diagnosis of ADHD is accurate.
Ms Mynard scored your cognitive functioning as below average, with an overall IQ score of 87.  Ms Mynard considers that you will need counselling and therapy to enhance your prospects of rehabilitation.

28Ms Mynard states:

A longer term of imprisonment may weigh more heavily upon Mr McLean, given that he does have complex mental health issues and lower than average cognitive abilities.

29Unfortunately, no other analysis is provided by Ms Mynard to enable me to properly assess how this conclusion was arrived at.  In particular, the use of the word “may”, in the sentence, "may weigh more heavily", prevents me from reaching a definite conclusion in this respect.  In any event, I will take the matter into consideration in formulating the appropriate sentence for this case.

30Ms Lynch submitted on your behalf that the following matters ought to mitigate your offending:

·First, that the early plea of guilty had a  utilitarian benefit;

·Second, that your rehabilitation is attainable, as evidenced by
a reasonable work history, the salutary lesson that you are learning from your time in custody, you have good family support and you have the ability to live with your mother upon your release.

·Third, the matters outlined by Ms Mynard as to your IQ and psychological state, can be addressed through therapy and counselling.

31Ms Lynch specifically submitted that the time you had spent on remand, which was 335 days to the date of the plea, was sufficient time in custody for all of your offending and that the appropriate sentence to be imposed was
a combination sentence of imprisonment, with a community corrections order.

32Moreover, Ms Lynch pointed out that, as you are a permanent resident, if
a sentence of 12 months' imprisonment or more is imposed, provisions of the Migration Act would trigger the cancellation of your permanent resident visa and you would face the prospect of deportation to New Zealand.

33Ms Lynch submitted that the effect of s.501 (7A) Migration Act, is that even if you are sentenced to concurrent terms of imprisonment on each of the charges you face, the Act operates to count the whole of each term of imprisonment and to add them together for the purpose of working out the total term of imprisonment imposed.  In other words, Ms Lynch urged that I should not impose terms of imprisonment on the three offences, even if those terms are to be made concurrent which total or exceed 12 months.

34Accordingly, Ms Lynch submitted that the prospect of deportation was relevant to sentence as a serious punishing consequence of your offending, as you would lose the opportunity to settle in Australia, where you have lived since childhood and where your family is established.  It would have the further consequence of also distancing you from your daughter.

35In addition, Ms Lynch submitted that the prospect of cancellation of your visa and the prospect of deportation would make your time in prison harder than for others who do not face such a prospect, as you would know that at the expiration of your time, you face the prospect of deportation.

36Ms Foot, on behalf of the Crown submitted, after consulting a Crown prosecutor and taking into account the submissions of the defence, including the psychological material that had been filed, that it was within range to impose
a combined sentence of imprisonment with a CCO.  This is so, given that the legislation provides that a sentence of up to 12 months can be imposed from the date of sentence, notwithstanding the time already spent in custody, by way of pre-sentence detention.

37The Crown did not, however, agree that you should be immediately released from custody to commence a CCO.  Rather, the Crown relied upon the principles enunciated in the case of Younger, which provides assistance as to the operation of s.44 Sentencing Act.  This would enable the court to sentence you to a period of up to 12 months' imprisonment, in combination with a CCO from this point, notwithstanding that you have already served nearly
11 months.

38Ms Foot’s instructions did not go so far as to provide submissions that the total of all three sentences I must impose should not exceed 12 months, so as to ensure that s.501 Migration Act is not enlivened.

39I ordered a presentence report from Corrections as to your suitability to be placed on a community corrections order.  You will recall that I expressed considerable reluctance at the time.  Whilst the report considers that you are suitable to be placed on a CCO, you were assessed as being a high risk of
re-offending.

40In my view, the seriousness of your offending on 26 February 2017, that is, the commission of an aggravated burglary and the criminal damage caused to property and then after that, the violent resisting of two police officers, such that they had to use capsicum spray to subdue you, cannot be met by sentences of imprisonment which total less than 12 months.

41As I have already observed, the intentional invasion of another person’s home is a very serious offence.  In this case, the objective seriousness is increased by the fact that you went to your ex-partner's home with the intention of damaging property and you were reckless as to whether or not she was there. There was nothing about your actions from the outset that suggested that you were to "sort things out”, rather, you started smashing the home from the outset. You continued your destructive acts when you climbed inside the window.  You acted with menace as you called out to your partner.  Although you did not actually know she was there, she was terrified by your actions.  As I have already observed, general deterrence, denunciation and protection of the community must figure large in the sentence I impose.

42In my view, these actions deserve high condemnation and must attract severe punishment.  Your prior convictions for previously damaging property only add to the conclusion that you are well used to expressing anger or venting your frustration through destructive means.

43I am troubled by the fact that for the sentence I impose, you will face the prospect of cancellation of your permanent visa.  It is indeed an extra punishment that you may be deprived of the opportunity to remain in Australia and thereby be deprived of the way of life you have known for so long, to be deprived of your family and access to your daughter.  I will reduce the sentence, taking into account these factors and of course, taking into account your plea of guilty, but I will not contrive a sentence to bring the total that I impose under the 12 month period.  To do so would be contrary to the proper application of sentencing principles

44Furthermore, I consider your prospects of rehabilitation to be only guarded. After nearly 12 months in custody, you were nevertheless assessed by Corrections as being a high risk of re-offending.  In my view, there is nothing about your lifestyle leading up to your arrest, or about your time in custody, as outlined on the plea and in the report of Ms Mynard, to suggest that you have particular insight, or that you have truly started on the road to rehabilitation. 
I do not consider that at this time, you are an appropriate candidate for
a community corrections order,  notwithstanding the conclusion reached by the assessing officer that you are suitable for such an order.  Accordingly, I have decided to fix terms of imprisonment on each of the three offences. 

45Now, if I could ask you to stand up please.

46On Charge 1, on the charge of aggravated burglary, you are convicted and sentenced to a term of 26 months' imprisonment.

47On Charge 2, criminal damage, you are convicted and sentenced to three months' imprisonment.

48I order that two months of the sentence on charge 2 be served cumulatively on the sentence on Charge 1. 

49On Charge 3, the charge of resisting an emergency worker on duty, you are convicted and sentenced to three months' imprisonment.

50I order that two months of this sentence be served cumulatively on the sentence on Charge 1. 

51This leads to a total effective sentence of 30 months' imprisonment, that is, two and a half years. 

52I order that you serve two years before you are eligible for parole.

53I declare that the period of 339 days pre-sentence detention, excluding today, be reckoned as already served. 

54The 6AAA declaration is that, but for your plea of guilty, I would have sentenced you to a period of five years, with three years and nine months to serve.