Director of Public Prosecutions v McLennan

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00680

DIRECTOR OF PUBLIC PROSECUTIONS

JAMES DIBBEN MCLENNAN

---

JUDGE:	Palmer
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2023
DATE OF SENTENCE:	8 December 2023
CASE MAY BE CITED AS:	DPP v MCLENNAN
MEDIUM NEUTRAL CITATION:	[2023] VCC 2290

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW
Catchwords:                 Aggravated burglary – criminal damage – theft – possession of a dangerous article – troubled upbringing – mental health diagnosis – aggravated burglary in context of an isolated and uprotected worker – moral culpability – Bugmy not enlivened - Verdins limb 5 relevant – mental health a mitigating factor despite Verdins limb 3 and 4 not present – early plea of guilty.
Legislation Cited:         Crimes Act 1958 (Vic); Control of Weapons Act 1990 (Vic)
Cases Cited:R v Lee [2006] VSCA 272; Dirbass v The Queen [2018] VSCA 272; Salapura v The Queen [2018] VSCA 255; Bugmy v The Queen (2013) 249 CLR 571; Newton v The King [2023] VSCA 22; R v Verdins (2007) 171 A Crim R 227; DPP v O’Neill [2015] VSCA 325; Alexander v The Queen [2021] VSCA 217; DPP (Cth) v Boyles [2016] VSCA 267; Guven v The Queen [2017] VSCA 92; Veen (No 2) (1988) 164 CLR 465; Kargar v The Queen [2018] VSCA 148; DPP v Christie [2021] VCC 24; Till v The Queen [2018] VSCA 122; Kiezenberg v The Queen [2017] VSCA 235; DPP v Meyers (2014) 44 VR 486;
Sentence:  Total effective sentence 2 years, 6 months with a non-parole period of 18 months.
6AAA – but for plea of guilty total effective sentence 4 and a half years with a non-parole period of 3 years.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D White	Office of Public Prosecutions
For the Accused	Ms S Lenthall	Stary Norton Halphen

HIS HONOUR:

Shortly after midnight on 9 November 2022, members of Victoria Police responded to a report of an intoxicated or drug-affected woman harassing people at 254 Sydney Road, Brunswick.
At the scene, police observed a man who appeared dishevelled and distressed. He was trying to calm the woman, but was only agitating her further. This was you, James Dibben McLennan.
Police asked if you knew the woman and you said you did not. You loitered as police tried to deal with her. You were talking about things being covered in blood, bullet holes, the nearby Sofitel Hotel, and it seemed to one officer that you were rambling about someone being murdered.
A short time later, that same officer was speaking to two members of the public. You approached and – without warning – placed an object on top of a device he was holding. You said, ‘This was at the Sofitel,’ or words to that effect. It appeared to the officer to be a homemade explosive device. It was in fact a butane aerosol canister that had been duct-taped to a lighter. This is the subject of summary charge 8 – possession of a dangerous article.
Police told you to leave the area immediately. You did.
At about 3.29AM, you arrived at a 7-11 store located at 415 – 429 Flemington Road, North Melbourne.
You removed a number of petrol hoses from their bowsers and threw them to the ground. You approached the locked glass doors of the store and started shouting to be let in. The clerk told you through an external intercom that he would not do so.
You picked up a fire extinguisher near the bowsers and sprayed the extinguishing agent over the concourse, covering it in white smoke and powder. The clerk inside called 000.
You walked back to the store and approached another fire extinguisher behind a glass case. You smashed the glass and bent the door of the case, removing the fire extinguisher. This is the subject of charge 3 – criminal damage.
You began slamming the extinguisher into the glass doors of the store.
At this point, two unknown men approached you. A further unknown man began throwing things at you. You started spraying the extinguishing agent at him, filling the concourse with more smoke. A witness who was driving into the 7-11 at that time saw this and called 000, reporting that you had ‘absolutely trashed’ the store.
You walked away from the store, taking the extinguisher with you. This is the first part of charge 4 – theft.
At about 3.40AM, still carrying the stolen fire extinguisher, you arrived at a second 7-11 store, located at 163 Boundary Road, North Melbourne.
Mr Sufi Omar — 27 years old at the time — was working behind the counter. An unknown man approached the store and asked to be let in to buy a coffee. The doors were opened. You followed him inside the store.
You approached the front counter. You put the fire extinguisher down. You reached across the counter and began pulling at power cords from the register. You threw some bananas from the counter across the floor.
Once the unknown man had purchased a coffee and left the store, you again approached the counter and pulled the register from it. You lifted it above your head and threw it to the ground, causing it to break. This forms part of charge 2 – criminal damage.
You can then be seen pulling a number of objects from the counter and throwing them across the floor. Mr Omar, the clerk, says you were asking him to press the duress alarm, and says you wanted him to call the police.
You went to the back of the store, took items from shelves and broke them. Mr Omar fled to the safe room behind the counter, and continued to watch you via CCTV. He called police and said you had a gas cylinder which you were using to smash windows.
At about this time, two men approached the front doors of the service station and confronted you. You picked up the fire extinguisher and started spraying it at one of them, who was trying to enter, covering the store in smoke and powder. You sprayed the agent at an ice-cream freezer; the force of the emission shattered the glass door of the freezer and caused a cardboard sign on top of it to collapse. This is part of charge 2 – criminal damage.
You tipped over a second freezer, causing ice creams to pour across the floor. This is also part of charge 2 – criminal damage.
You approached the glass door leading to the enclosed service area behind the counter. After trying to open the door, you smashed the glass with the fire extinguisher, which is also part of charge 2 – criminal damage. You then pushed the door and it opened. You entered the service area and shut the door. This is charge 1 – aggravated burglary.
You took a cigarette from the counter area and lit it – this is the other part of charge 4 theft. You stood there behind the counter, smoking.
You left the service area and went to the back of the store. You took some petrol injector cleaner and poured it across the entryway of the store. This also forms part of charge 2 – criminal damage.
You retrieved a cannister of instant engine starter, a highly flammable substance containing petroleum.
One of the unknown men from earlier reapproached the store and placed an orange traffic cone on top of the liquid at the entryway.
You re-entered the service area, taking the cannister with you — this is also part of charge 1 – aggravated burglary.
You combined the cannister with a cigarette lighter to create a makeshift flamethrower. You sprayed the flame towards one of the unknown men, causing them to retreat. The flame caused the metal wiring above the service counter to distort and discolour, and the clear Perspex to shatter – this forms a further part of charge 2 – criminal damage.
The unknown men left. You went to the back of the store and retrieved two bottles of methylated spirits. You poured their contents across the front of the store, where you had earlier poured the petrol injector cleaner; you leant over the pool of methylated spirits and threw some matches into the liquid – this forms a further part of charge 2 – criminal damage.
At about 3.55AM, police arrived at the store. You were seen knocking foodstuffs off the shelves onto the floor. Police reported ‘significant destruction’ to the store. The floor was covered in white powder, and there were several food and drink items scattered across it – this forms a further part of charge 2 – criminal damage.
You were arrested and taken to the Royal Melbourne Hospital. You were assessed and treated for what appeared to be a small laceration between your eyebrows. You were then transported to the Melbourne West Police Station for interview.

Charges and maximum penalties

In summary, you have pleaded guilty to:
·One charge of aggravated burglary, contrary to s 77 of the Crimes Act 1958;
·Two rolled-up charges of criminal damage, contrary to s 197(1) of the Crimes Act 1958;
·One rolled-up charge of theft, contrary to s 74 of the Crimes Act 1958; and
·One charge of the summary offence of possession of a dangerous article contrary to section 7(1) of the Control of Weapons Act 1990.
The maximum penalties for these offences are as follows:
·Aggravated burglary – 25 years’ imprisonment;
·Criminal damage – 10 years’ imprisonment;
·Theft – 10 years’ imprisonment;
·Possession of a dangerous article – 6 months’ imprisonment or a fine of 60 penalty units.
Your counsel accepted that a sentence combining imprisonment with a community correction order was not in range.

Personal Circumstances

At the time of the offending you were 47. You are now 48.
You were born in Melbourne and your parents separated when you were 10. You have three older half-sisters and one older sister.
Your upbringing was troubled. You report being physically abused by your mother, who was an alcoholic. She passed away when you were 13.
After her death you disengaged from school and began using illicit drugs. You were ultimately expelled from school at age 15. You began to live with and work for your father, a property developer.
At some point around this time you ran away to Sydney. There you were groomed by a man and report being held against your will, raped regularly, and forced to take drugs.
After about 18 months, you were found by private investigators and returned to living with your father. The Forensicare report dated 17 November 2023, prepared by Dr Elena Bhattacharya, states that once you returned to Melbourne you wanted to forget about what had happened, and thus you did not receive treatment or support from mental health services. You were severely traumatised by these events.
You worked for your father until the age of 17 when you were incarcerated for the first time, for assaulting a store manager. You spent three months in Pentridge Prison. The report of Dr Bhattacharya states: ‘This was the beginning of [your] recurrent incarcerations and [you] reported that [you] spent almost 17 years in custody subsequently.’ Whether or not the figure of 17 years is accurate, it is clear that you have spent a large portion of your adult life in custody.
You married your wife, Nicole, when you were just 18. She died at the age of 23 from a heroin overdose. I am told you were using heroin also around this time. The report of Dr Bhattacharya and your counsel’s submissions state that you stopped using after Nicole’s death. However, the report of Dr Sachin Jindal says that after Nicole’s death you tried to kill yourself via overdose for the next six months.
You have a son from that relationship who went to live with his maternal grandmother after Nicole’s death. I am told that, though you only see him sporadically, you have a good relationship with him.
You began using marijuana at age 13. You have used many other drugs. You began using methamphetamine (or ‘ice’) at age 25. The report of Dr Jindal states you were using ice ‘now and then in between’ your periods of imprisonment.
You were diagnosed with schizophrenia at the age of 20 and have not worked since. You began receiving a disability support pension at age 23. You have an acquired brain injury from an attack which occurred in the year 2000.
A major problem in your life has been the voices which you hear in your mind. These voices are derogatory in nature, and sometimes they command you to do things. Dr Bhattacharya reports that you used to obey them, though you are able to fight them now. In the past you believed the TV was talking to you, sending you messages and commanding you to speak badly about others. You listened to music to drown these voices out. You reported to Dr Jindal that this issue has improved, though the voices are still faintly in the background.
You have been diagnosed as having: [1]
·Schizophrenia;
·Substance abuse disorder;
·Acquired brain injury; and
·PTSD.
[1] Forensicare Report (17 November 2023), [72]-[73]; Legal Psychiatry Report (6 October 2023), [33].
In the words of your counsel, as an adult, you have led an itinerant and at times chaotic life, dominated by mental ill health, drug abuse, homelessness and incarceration.
You have an extensive criminal history going back more than thirty years, which includes prior convictions for aggravated burglary, criminal damage and theft. In 2021 you were sentenced to six months imprisonment for charges based on conduct that shares some features with the conduct which is the basis of these charges.[2]
[2] Prosecution Outline of Sentencing Submissions (4 December 2023), [20].

Objective Gravity of Offending

Your counsel submitted that the aggravated burglary lacked many of the features commonly associated with such offending, in that it did not violate the sanctity of the victim’s home, it was not carried out in company and there was no harm to any person. Your counsel also submitted that you did not use the fire extinguisher as a weapon. It is true that you did not use the fire extinguisher as a weapon against Mr Omar (although you did use it against the two men who were confronting you, and to smash the door to the service area).
That being said – to the extent that such labels are useful – your offending cannot be considered low-level. Mr Omar, the clerk in the second 7-11, was working in an isolated and unprotected environment, and was forced to retreat to a safe room.[3] Your conduct must have placed him in significant fear. Whilst stuck in the safe room, watching you via CCTV, he saw you breaking windows, fighting another man, and lighting a fire. Your conduct persisted for approximately twenty minutes,[4] and caused extensive damage to the store.
[3] Cf R v Lee [2006] VSCA 80 at [24].
[4] Cf Dirbass v The Queen [2018] VSCA 272 at [65]; and Salapura v The Queen [2018] VSCA 255 at [57].
I therefore find, in relation to the charge of aggravated burglary (charge one), that your offending falls in the middle range of seriousness. In relation to the charge of criminal damage at the second 7-11 store (charge 2), I find this to be in the upper-middle range of seriousness.
However, I find the charge of criminal damage at the first 7-11 store (charge 3) to be in a lower range of offending. I also find that your theft of the cigarette lighter and fire extinguisher (charge 4) are at the low end of seriousness for such offending. I also accept that your possession of the dangerous article was low-level. That you voluntarily handed the object to police is a mitigating factor.

Moral culpability

I turn to the issue of moral culpability.
Five days before your offending, you had ceased taking your medication. One of these prescriptions was Olanzapine (an anti-psychotic drug). You had been living with your sister but she had kicked you out of the house at about the same time because of your drinking and loud music. You went to stay at a hotel but left because you were feeling paranoid.
Your account of the offending is significant. You told Dr Jindal that you had been in a fight with some Somalian people that night. You told her you asked them for money and they attacked you. They hit you in the head three times with a machete and you ran away.
You told Dr Bhattacharya that you were in Parkville when you were approached by a Sudanese man, who hit you six or seven times and stole your wallet, watch and phone. You tried to flee, running up to a car which began to drive off. To stop it, you smashed its windscreen. The driver got out and attacked you with a machete. You formed the belief that your attackers knew each other.
You told Dr Bhattacharya that you ran to the first 7-11, but when the doors did not open for you, you used the fire extinguisher to keep the men away. You then went to the second 7-11, but when the clerk refused to call the police, you began causing mayhem to try and attract the attention of police. The two Sudanese men followed you to the store and a fight ensued. In desperation, you also cut yourself to attract the attention of police, and waited for their arrival.
It is impossible to know how much of your accounts are based on facts which actually occurred, and how much of these accounts are delusional. I note that the CCTV footage clearly shows two African-looking men confronting you at the second 7-11, and that you are bleeding from the head when you first enter. I also note that the Forensicare report proceeds on the basis that your account of events is broadly accurate.
Regardless of the truth of what occurred, I accept that your actions were, at least in part, motivated by fear and self-preservation and that this is relevant to an assessment of your moral culpability. That said, your method of attracting police attention was irrational, frightening to others and raises concerns about your mental state at the time of offending.
Your counsel submitted that the principles of Bugmy should apply, at least in a general sense.[5] I accept that your troubled upbringing and early life has left its mark on you, and continues to affect you, and that this must be given weight in the sentencing process, as reducing your moral culpability to some extent.
[5] Cf Newton v The King [2023] VSCA 22 at [45].
However, I accept the Crown’s submissions that the material before me does not enable me to find that this upbringing contributed to, or explains, your offending in a such a way as to reduce your moral culpability in the more specific way described in Bugmy.
I move to the issue of Verdins. The Crown accepted, and I find, that limb 5 of Verdins is made out, in that prison will weigh more heavily on you than on someone without schizophrenia.[6] Your counsel did not rely on limb 6. In relation to limb 6, I also note paragraph [79] of the Forensicare Report, which states that you are being managed well in the Marlborough Unit in prison.
[6] Forensicare Report (17 November 2023), [80].
Nor did your counsel rely on limbs 1 or 2 of Verdins; however, she did rely on limbs 3 and 4. These limbs provide for the moderation or elimination as sentencing considerations of (respectively) general and specific deterrence. This depends on the nature and severity of the symptoms of the condition exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
During the plea hearing, there was discussion about the extent to which the application of limbs 3 and 4 require there to have been a causal link between the offender’s condition and their offending. There must be an established evidentiary basis for moderating the principles of general deterrence in a particular case, and that there must be proper informed consideration of how a particular mental impairment might have either materially diminished the capacity of the offender to reason appropriately at the time of the offence, or of how the offender’s condition might make full application of the principles of general deterrence repugnant to the underlying sense of humanity which guides proper sentencing.[7]
[7] DPP v O’Neill [2015] VSCA 325 at [59] and [71]-[78].

In the present case, Dr Bhattacharya and Dr Jindal’s reports provide strong evidence that you have suffered from serious mental impairment over the course of your life. However, they provide only weak support for the proposition that your moral culpability for your offending was reduced because your mental health conditions impaired your ability to exercise appropriate judgement, to make calm and rational choices, or to appreciate the wrongfulness of your conduct. [8]
[8] Forensicare Report (17 November 2023), [80].
Moreover, any assessment of the effect of your mental condition on your moral culpability must also take into account the fact that you were using drugs and alcohol, which left you prone to doing “stupid things”;[9] and that you had stopped taking the medication which helped you to manage your mental health. You knew the importance of your medication regime to your mental health.[10] Your decision to stop taking that medication means that you bear significant responsibility for any impairment of your mental functioning that you were experiencing that night.[11]
[9] Forensicare Report (17 November 2023), [31]; Alexander v The Queen (2021) VSCA 217.
[10] See Forensicare Report (17 November 2023), [74].
[11] DPP (Cth) v Boyles [2016] VSCA 267 at [40]-[44].
Nor do Dr Bhattacharya and Dr Jindal’s reports provide material on the basis of which I could properly find that your mental health conditions would make the full application of the principles of general deterrence repugnant.
However, the Crown accepted that your sentence should be moderated in light of the difficulties and challenges you have faced and continue to face, including your mental health. In other words, even though the Crown did not accept that limbs 3 and 4 of Verdins were enlivened, the Crown nevertheless accepted that your mental health was a mitigating factor which should be taken into account in the sentencing process.
Moreover, even if I had found that your moral culpability was reduced by reason of your mental health, this would not necessarily have resulted in a reduction of sentence. This is because a mental condition which contributed to you behaving in the way that you did, would also increase the importance of community protection from you, and thereby point towards a countervailing need for a longer sentence.[12]
[12] Guven v The Queen [2017] VSCA 92 at [3] (Osborn JA) and [54] (Kidd AJA); and Veen (No 2) (1988) 164 CLR 465 at 476-7.

Letters of Support

I am in receipt of a letter from James Harding of Hard Cuddles and a letter from Pooja Nair of The Wish Group, both dated 6 October 2023. The letter from the Wish Group attests to there being therapeutic support options in place for you once you are released from custody. The letter from Hard Cuddles demonstrates some engagement on your part with support services. Both of these letters lend some credit, therefore, to your prospects of rehabilitation.
That said, it is difficult to avoid concurring with the Crown submission that your prospects of rehabilitation are not favourable.

Comparative Cases / Current Sentencing Practice

Although current sentencing practice is neither determinative, nor a yardstick, I am required to have regard to it. The parties agreed that it was difficult to find appropriately comparable cases, particularly in light of the chaotic nature of your offending and its unusual motive (to attract police attention). I was referred to two decisions, largely on the basis that they were very different from the offending in this case.[13]
[13] Kargar v The Queen [2018] VSCA 148; and DPP v Christie [2021] VCC 24.
My own review of current sentencing practice shows that sentences for aggravated burglary often receive fairly lengthy prison sentences,[14] and that there are a number of features which should ordinarily be considered in assessing the seriousness of an instance of aggravated burglary.[15] I have had regard to those matters.
[14] Till v The Queen [2018] VSCA 122; Kiezenberg v The Queen [2017] VSCA 235.
[15] DPP v Meyers (2014) 44 VR 486. These are the offender’s intent at point of entry, mode of entry, whether the offender was carrying a weapon, whether offender was alone or in company, the time of day of the offending, what the offender knew or believed about who was inside or where they would be, whether the offender was someone of whom the victim was particularly frightened.
I have also considered Guven v The Queen [2017] VSCA 92. In that case, a schizophrenic man with a history of non-adherence to medication committed an aggravated burglary. The offending was objectively more serious than in your case. Ultimately, the court found that the mitigating effects of mental illness were ‘nullified – at least to a very large degree – by the conflicting consideration of the need to protect society.’
I have also had regard to current sentencing practices in relation to serious criminal damage offending. Sentencing statistics reveal that where a term of imprisonment is imposed, half of those sentences are for more than four months imprisonment.[16]
[16] Sentencing Advisory Council, Sentencing outcomes in the higher courts, 1 July 2017 to 30 June 2022.

Plea of guilty and remorse

The prosecution accepts that you pleaded guilty at an early stage. A plea of guilty is of utilitarian value in that it avoids the need for a trial, and it attracts a sentencing discount accordingly. It was also submitted, and I accept, that the plea, being entered at a time when the courts were still labouring under the backlog created by Covid-19, should bring a greater amelioration of sentence than otherwise. In addition, I find that your plea demonstrates your acceptance of responsibility for your offending, and I also give that weight. I am instructed that you also acknowledge the impact of your offending on Mr Omar.

Orders

In the end, I have reached the conclusion that the most relevant sentencing purposes in this case are general and specific deterrence, denunciation and community protection; and that those purposes require that I impose a substantial sentence of imprisonment, with a non-parole period.
Mr McLennan, I sentence you as follows:
(a)On the charge of aggravated burglary (charge 1), I sentence you to two years imprisonment (this is the base sentence);
(b)On the charge of criminal damage in relation to the second 7-11 store (charge 2), I sentence you to nine months imprisonment, four months of which are to be served cumulatively on the base sentence;
(c)On the charge of criminal damage in relation to the first 7-11 store (charge 3), I sentence you to three months imprisonment, one month of which is to be served cumulatively on the base sentence;
(d)On the charge of theft (charge 4), I sentence you to four months imprisonment, one month of which is to be served cumulatively on the base sentence; and
(e)On the charge of possessing a dangerous article (related summary offence), I sentence you to one month imprisonment, to be served concurrently with the base sentence.
This makes for a total effective sentence of two years and six months. I set a minimum non-parole period of eighteen months imprisonment. I declare that you have served 394 days of pre-sentence detention. But for your plea of guilty I would have imposed a total effective sentence of four and a half years imprisonment, with a minimum non-parole period of three years.

[2023] VCC 2290

8 December 2023