Director of Public Prosecutions v McLean

[2017] VCC 1648

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01416

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACK MCLEAN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2017
DATE OF SENTENCE:	10 November 2017
CASE MAY BE CITED AS:	DPP v McLean
MEDIUM NEUTRAL CITATION:	[2017] VCC 1648

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Office of Public Prosecutions
For the Accused	Mr W. Barker	David Barrese & Associates

HIS HONOUR:

1Jack McLean, on 20 October 2016 you pleaded guilty on arraignment in the County Court sitting in Wodonga.  The offences involved burglary, theft, handling and arson.  There were other offences.  Your conduct and that of your co-accused committing these offences gained some notoriety in the Wodonga district.

2You had been arrested on 12 November 2015 and remanded in custody.  You had spent 356 days in custody to the point of the sentence.  In your plea your counsel tendered a letter that you wrote to the sentencing judge.  In it you falsely described your time in custody as involving much more lockdown time than was the case.

3You said that as a consequence of the prison riots in 2014 you were subject to six months of 23 hour lockdown and thereafter 18 hours in lockdown.  In fact you were the billet in the various units that you were placed in and not locked down for those periods of time at all.

4It seems on what I was told that the units were subject to lockdowns but you were not.  After the plea had concluded before the sentencing enquiries were made by the Office of Public Prosecutions with the prison authorities exposing your claims as false.

5In sentencing remarks the judge referred to the letter, its falsity and the various submissions of the parties on the topic.  She concluded, "Your counsel has submitted to me that the other matters in mitigation that were put on your behalf are still operative and should be still taken into account."  I interpose that Her Honour had already said the prosecutor had submitted the contrary.

6Her Honour went on, "I will do so, but I must say that the fact that you have been prepared to lie to me casts some doubt over particular issues of rehabilitation which otherwise might have been taken into account in a more optimistic way in assessing your future."

7She sentenced you to one year and nine months' imprisonment, together with a community corrections order for three years involving 300 hours of unpaid work and supervision and a drug counselling condition. 

8What then happened was you were charged with and had pleaded guilty to attempting to pervert the course of justice, the particulars being the falsity of the letter that you wrote to Her Honour containing the information that you were locked down for periods of time that I have outlined, which was not true.

9By the time that this matter, the pervert the course of justice matter, has moved and moved quickly from the Magistrates' Court to this court, you have nonetheless been released from prison and have commenced your community corrections order.

10The information I was given by your counsel here today that he obtained from Corrections is very encouraging.  Firstly, there is every indication you have not resumed drug use.  You have in quick time done the mandated drug counselling required of you and have, to your credit, taken up voluntary ongoing counselling so as you do not fall back into drug use.

11You are the subject of urine analysis or more random urine analysis from court arranged by Corrections and also the Department of Health and Human Services and, as I understand it, they have been all clean urine samples.

12Secondly, you have commenced work, that is the unpaid work that is required of you.  However, in what I consider to be a real sign of insight I was told that after the first work day you spoke to the Community Corrections Officer indicating that your work gang had old drug associates in it and you wanted to shift to another placement.

13This has been arranged and you are working well on the new work site.  It is always problematic putting people on community corrections orders, that they might come across or be introduced to people not as dedicated to reform as the particular person.

14It does take an effort to disassociate yourself from other drug users, but it is a critical thing to do.  Getting off drugs involves not taking them and not being around people who do.  Your insight in taking yourself away from those associates is a matter to your credit and makes me more optimistic than I might have otherwise been.

15Thirdly, you have taken up a men's program voluntarily so as to help you with parenting and family responsibilities.  It seems because of your past the Department of Health and Human Services has taken a protection interest in your daughter now too.

16From what I can deduce your daughter is flourishing with your partner who stands by you and speaks of your changed ways and attitudes over the time since your offending and in particular since your release.  You are not permitted to live with your partner and daughter and have supervised access with your mother attending.

17It seems the DHHS matters will be before the Children's Court later this month.  It may be you are able to resume more regular and perhaps permanent care of your child by living with your partner.  That is to be seen, but again it is an important rehabilitative matter if you resume living with your partner and taking on full time, as it were, family responsibilities.

18Fourthly, you have worked with your father who sees a real change in you.  It is hard for you to gain other work in the district due to your notoriety but hopefully in time or with the passing of time it will see you fully employed and able to make a useful contribution to your community.

19Mr McLean, you are still young but your past criminal history is long and serious.  I note and agree with the sentencing remarks of Judge Harbison at paragraphs 32 and 33.  Despite the false and exaggerated matters in your letter which sees you before me you did all that you could in prison to learn and rehabilitate.

20It seems that in the brief time of two months since your release you have continued to rehabilitate.  You have taken early steps but the signs are good according to the letters from your parents, your partner and a family friend that were tendered before me.

21I often say it, Mr McLean, but it seems to be something that really applies to you.  People have stood by you.  Here is your chance now not to let them down.  If you take drugs or get back into burglaries or other such crimes I cannot imagine how they are going to stand by you in the future.

22While ordinarily sentencing for the crime of attempt to pervert the course of justice would be a term of imprisonment sometimes for years, in circumstances such as this it seems to me this is a moment that needs to be seized and seized in a way to further facilitate your reform.

23In my view another community corrections order can express denunciation and deterrence in the form of punishment by unpaid work, while simultaneously facilitating your reform, as I am required to do so by the Sentencing Act. In the end the community is better protected and the better if you are able to stay out of trouble, establish and raise your family and to make a contribution to your community, as I expect you can.

24Your counsel urged that I place you on a community corrections order and the prosecution did not argue to the contrary.  If you falter you will face both Judge Harbison and myself and likely be returned to gaol for a considerable time.  Your plea of guilty is important in this case.  It does bespeak of reform and a better attitude.

25Can you please stand, Mr McLean?  For committing the crime of attempting to pervert the course of justice I sentence you to a two year community corrections order.  The conditions of that order, the mandatory ones, will apply to you and I will outline those shortly.

26Special conditions that apply to you are these; that you will be under supervision for the two years and you will do unpaid community work of 180 hours.  By operation of law though the community corrections order and the unpaid work will run concurrently with the community corrections order that you are currently on.

27Had you pleaded not guilty to the offences and been found guilty of them I would have sentenced you to imprisonment of a sentence of two years and three months with a non-parole period of 18 months.  A document has to be produced and when it is if you sign it it will bring the matter and all your court matters to an end.

28The document says this; that the order will last for two years, commencing today, and ending on 9 November 2019.  You must attend at the Wodonga Community Corrections Service.  I assume that is the appropriate one.  The mandatory conditions are you must not commit another offence for which you could be imprisoned during the time this order is in force.

29That is straightforward, Mr McLean.  Commit another offence, even if the magistrate would not put you in prison for it, you will come back before me and likely Judge Harbison or another County Court judge in a place and you will be returned to prison.

30You must comply with the obligations and requirements under the Sentencing Regulations.  You know what they are, at Corrections if they need your photograph or other identifying things.  You must report to and receive visits from the Office of Corrections.  You must report to them in two clear working days of this order starting, so get back there straight away.

31You must let the Community Corrections Officer know within two clear working days if you change your address or your job.  So if you take up with your partner or get another job you have got to tell them.  You must not leave Victoria without first getting permission to do so from the Secretary.  I know this is particularly difficult in the area that you live but you have got to comply with it.

32You must obey all lawful instructions from and directions to from the Office of Corrections.  So that applies to everyone on a community corrections order and in addition to you you must perform 180 hours of unpaid community work over the two years, and you must be under supervision of a Community Corrections Officer for two years.  Do you follow all that?

33OFFENDER:  Yes, Your Honour.

34HIS HONOUR:  If you sign that?  Mr Barker, you can go to the back of the court for him to sign that.

35MR BARKER:  Thank you, Your Honour.

36HIS HONOUR:  I have signed that.  I do not think I will forget this case, lying about what you put in the letter, so if you come back within two years I will remember exactly what I said.  Mr Barker, thank you for your assistance and likewise, Mr Roper.  There will be a copy provided to you, Mr Barker, and
Mr Roper and once that is done Mr McLean is free to go.  Thank you.

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