Director of Public Prosecutions v McLellan

[2018] VCC 2122

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01453

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRADLEY MCLELLAN

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February, 15 May, 7 September and 2 November 2018
DATE OF SENTENCE:	2 November 2018
CASE MAY BE CITED AS:	DPP v McLellan
MEDIUM NEUTRAL CITATION:	[2018] VCC 2122

REASONS FOR SENTENCE
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Subject:  Resentencing on one charge of aggravated burglary

Catchwords:               Application to vary CCO – charge of contravention of CCO – multiple instances of failing to comply with CCO – sentence imposed on 20 December 2016 set aside – defendant resentenced: convicted of one charge of aggravated burglary and ordered to serve a term of imprisonment of 3 years with a non-parole period of 18 months.  S6AAA declaration:  4 years with non-parole period of 3 years.

Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms AR Ring	Solicitor for the Office of Public Prosecutions
For the Accused	Mr T Bourbon	Victoria Legal Aid

For the Office of Corrections      Mr T O’Donohue

1Bradley James McLellan, you have pleaded guilty to one charge of contravention of a community corrections order, which was part of a combination sentence of imprisonment and a community corrections order imposed by me on 20 December 2016 for the offence of aggravated burglary.  The maximum penalty for the contravention of a community corrections order is three months' imprisonment.

2Unfortunately, after serving a total effective sentence of 16 months' imprisonment for the aggravated burglary and other offences of theft and intentionally causing injury, you have persistently failed to engage with the community corrections order.  You originally made application to vary your conditions of the Corrections order by having a condition of judicial monitoring imposed and the matter came before me on 13 February this year.

3It was adjourned to 15 May 2018 in order for you to undergo a neuropsychological assessment and to also give you an opportunity to engage with the order.  You had indicated that you were waiting for a bed at Windana in order to undergo a residential detoxification program. 

4On 15 May 2018 you appeared before me and, still, a bed had not become available.  You had injured yourself doing some work with a friend lifting up tram lines, and I suspended the community work component for a time.  However, I ordered that you undergo random urine analysis and that you cooperate with Corrections in the event that a bed in a residential detoxification unit were to become available.  The matter was adjourned to 7 September 2018. 

5Unhappily, your progress report from the Office of Corrections dated 23 August 2018 was not very favourable.  You had obtained a bed at Windana Rehabilitation Centre and left after two days, stating that you wanted to be with your girlfriend, Ms Kelly Holmes, who was pregnant to you.  You also had unacceptable absences from supervision appointments over July and August and had returned two positive urine samples on 18 June 2018 and 2 July 2018.  You also failed to keep appointments with a specialist to address your diagnosed Attention Deficit Hyperactivity Disorder, for which Corrections had paid $100 of the initial fee.  In short, your performance on the community corrections order had deteriorated significantly since early July, and the court was told that you were to face three sets of further offending in the Magistrates' Court on 22 October 2018.

6In the light of the fact that your partner was due to give birth to your child on 22 November 2018 and also in the light of having received a neuropsychological report of Dr Louise Bannister, Exhibit C, that you have borderline intelligence with an IQ of 77, as well as Attention Deficit Hyperactivity Disorder, and overall behavioural issues including difficulties with attention and impulsiveness, I adjourned the matter one last time in order to give you an opportunity to engage with the order.

7Unfortunately, you did not utilise that opportunity.  You attended only once upon your case officer, Mr O'Donohue, on 12 September 2018.  He had booked you into a YSAS Centre for a residential detoxification program and you left after one day, stating that you were concerned about your pregnant partner and also your very decent and longsuffering mother who has recently been diagnosed with breast cancer.  You failed to answer your bail in the Magistrates' Court on 22 October 2018.  A warrant was issued and you were taken into custody on 26 October 2018. 

8This court can no longer tolerate your persistent flouting of the court order.  Since the commencement of the community corrections order you have incurred 30 instances of absences, whether they be failing to attend for supervision, rehabilitation or community work.  You performed only 20 of the total of 300 hours of unpaid community work, and four out of five random urine screens have tested positive for illicit drugs.  The Office of Corrections has recommended cancellation of the community corrections order and this is endorsed by the prosecution.

9In all of the circumstances, the only appropriate course is for me to set aside the sentence imposed on the charge of aggravated burglary and to sentence you afresh.  In doing so, I take into account the extent to which you did comply, albeit to a limited extent, with the community corrections order and your particular problems of borderline intelligence and Attention Deficit Hyperactivity Disorder.  I also take into account your youth.  You are only 21 years of age and will not be 22 until January next year.

10Unhappily, I assess the basis for your problems as, not your borderline intelligence or ADHD but primarily your persistent use of illicit drugs.  Although I do take into account that those other matters are likely to make it difficult for you in custody and, indeed, I have no doubt that you will anguish about both your partner and your mother whilst you are in custody and this will make serving a time in custody burdensome for you, unfortunately, you simply lack the willpower to stay away from dangerous drugs, even though you have the incentive of being about to become a father for the first time.

11The sentence imposed on one charge of aggravated burglary on 20 December 2016 is set aside.  In its stead you are convicted and sentenced to serve a term of imprisonment of three years.  I order that you serve a period of 18 months before becoming eligible for parole.  I declare a period of one year and seven days pre-sentence detention to be reckoned as time already served under the sentence imposed this day.  I have added the seven days on because I considered that Mr McLellan should get the benefit of that as soon as possible.

12MS RING:  Yes, absolutely Your Honour, it's very open.

13HER HONOUR:  Pursuant to s.6AAA, were it not for your plea of guilty, the sentence imposed on the aggravated burglary would have been four years' imprisonment with a non-parole period of three years. 

14On one charge of contravening a community corrections order I find the charge proven and I make no further order on that charge. 

15Would you take Mr McLellan from the court, please.

16MR BOURBON:  As Your Honour pleases.

17HER HONOUR:  Have I left anything out, Ms Ring and Mr Bourbon?

18COUNSEL:  No, Your Honour.

19HER HONOUR:  Thank you. 

20MR BOURBON:  Your Honour, may I be excused from the Bar table?

21HER HONOUR:  Yes, certainly.  Thank you both.

22MS RING:  May I be excused, Your Honour?

23HER HONOUR:  Yes.

24MS RING:  Thank you, Your Honour.

25HER HONOUR:  And Mr McLelland's family, you should feel free to leave the court.  Thank you very much, Mr O'Donohue, I'll have that link terminated as soon as my tipstaff returns.

26MR O'DONOHUE:  Thank you, Your Honour.

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