Director of Public Prosecutions v McLeod

[2020] VCC 1548

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00408

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW McLEOD

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July; 24 August; 24 September 2020
DATE OF SENTENCE:	30 September 2020
CASE MAY BE CITED AS:	DPP v McLeod
MEDIUM NEUTRAL CITATION:	[2020] VCC 1548

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Aggravated burglary – Attempted aggravated burglary – Theft – Intentionally destroy property – Dangerous driving while pursued by police – Assault police on duty – Drive whilst disqualified – Serious offending – Young offender – Significant criminal history – Subject of Youth Parole Order – General deterrence – History of drug abuse – Disadvantaged background – High risk of reoffending – s 32 factors considered – Unsuitable for Youth Justice Detention
Legislation Cited: Crimes Act 1958 (Vic); Road Safety Act 1986 (Vic); Sentencing Act 1991 (Vic); Children, Youth and Families Act 2005 (Vic);
Cases Cited: R v Verdins (2007) 16 VR 269; Azzopardi v The Queen (2011) 35 VR 43
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Porceddu	The Office of Public Prosecutions
For the Accused	Ms K. Rolfe	Victoria Legal Aid

HIS HONOUR: 

1Matthew McLeod, you have pleaded guilty to the following charges: 

(i) two charges of aggravated burglary contrary to s.77 of the Crimes Act1958 (Vic). The maximum penalty for that offence is 25 years' imprisonment;

(ii) three charges of attempting to commit an indictable offence, namely aggravated burglary, contrary to ss.321M and 77 of the Crimes Act1958 (Vic). The maximum penalty for that offence is 20 years' imprisonment;

(iii) one charge of theft contrary to s.74 of the Crimes Act1958 (Vic). The maximum penalty for that offence is 10 years' imprisonment;

(iv) one charge of intentionally damaging property contrary to s.197 of the Crimes Act1958 (Vic). The maximum penalty for that offence is 10 years' imprisonment;

(v) one charge of dangerous driving while pursued by police contrary to s.319AA of the Crimes Act1958 (Vic). The maximum penalty for that offence is three years' imprisonment; and

(vi) one charge of assaulting a police officer on duty contrary to s.31(1)(b) of the Crimes Act1958 (Vic). The maximum penalty for that offence is five years' imprisonment.

2You have also pleaded guilty to the related summary offence of driving whilst disqualified contrary to s.30(1) of the Road Safety Act1986 (Vic). The maximum penalty for that offence is a fine of 30 penalty units or three years' imprisonment.

3You pleaded guilty at committal case conference and I have taken your early plea into account in your favour in mitigation of sentence.  I accept it is evidence of some remorse for your offending and it has spared the community the burden of complex criminal proceedings.

4You have admitted a criminal history in relation to appearances in the Children's Court and the Magistrates' Court.  You have relevant prior court appearances for aggravated burglary, reckless conduct endangering serious injury, driving in a manner dangerous and assault.  At the time of your offending in this instance you were the subject of a Youth Parole Order and had only recently been released from detention in a Youth Justice Centre after serving 6 months of an 18 month Youth Justice Centre Order and a concurrent 6 month Youth Justice Centre Order.  In my opinion your criminal history, even though it resides in the Youth Justice system, is significant for sentencing purposes in this instance. 

5An agreed prosecution opening was tendered in evidence and your offending may be summarised as follows - 

6In the early hours of the morning of 11 December 2019, in company with a co-offender who was then aged 17 years, you committed a series of serious offences in Springvale, Springvale South and Keysborough before a high-speed police pursuit in a stolen vehicle driven by you in Noble Park. 

7At 1.03 am you attempted to enter residential premises located in Springvale South by forcing a door and using the door handle.  A security sensor was activated and you were filmed on CCTV.  This conduct relates to Charge 4 on the indictment.

8At 1.30 am you and your co-offender then attended at premises in Annabelle Boulevard in Keysborough and banged on the front door.  Your victims, a family comprising two parents and their daughters aged nine and four years, were in bed.  You entered the premises after forcing open the door.  The male occupant went to investigate and saw you running from his house.  A set of car keys were missing after you left the premises.  This conduct relates to Charge 1 on the indictment.

9At 1.51 am you and your co-offender then attended at residential premises located at Keylana Drive, Keysborough.  A large family was asleep in the premises.  Your co-offender forced entry into the house and was armed with a metal pole, probably a tyre lever.  He screamed at an occupant who had got up to give him the keys to a BMW which was parked outside that you had attempted to break into.  He threatened the occupants of the house before running out and smashing a window of the BMW.  This conduct relates to Charge 9 on the indictment.

10At approximately 2.04 am you and your co-offender then attended at other premises in Keylana Drive, Keysborough and one or both of you attempted to enter the house, smashing a glass panel at the front door.  At the time, the house was occupied.  This conduct is relied on in support of Charge 5 on the indictment.

11Following this, you both then attended at another house located in Keylana Drive, Keysborough.  At the time, the house was occupied by a family comprising two parents and their two children aged three and four years.  Their mother was 38 weeks' pregnant.  One of you used a tool to smash the window next to the front door and attempted to open the door by putting your hand through the window and turning the lock.  The male occupant saw this and yelled that the police had been called.  This conduct is relied upon in support of Charge 2 on the indictment.

12Investigating police then located the stolen vehicle that you were driving in the vicinity of Keylana Drive and commenced pursuit of you.  You stopped the vehicle and your co-offender got out and threatened the police with a tyre lever.  You then became involved in a struggle with First Constable Nathan before driving off.  After this you then drove the vehicle at speeds up to 143 kilometres an hour along the Princes Highway and along Corrigan Road in Noble Park, while being pursued by police for approximately 7 kilometres.  You then lost control of the vehicle and shortly afterwards were arrested by police.  This conduct is relied upon in support of Charges 3, 7 and 8 on the indictment.

13You were arrested by police and made a no comment interview when questioned by them.  Following your arrest you were remanded in custody in adult prison, where you remain.

14It is clear from the summary that you engaged in a series of crimes of the utmost seriousness.  You and your co-offender were parties to a joint criminal enterprise to forcibly enter residential properties that you must have known would have been occupied.  You knew your co-offender was armed when he entered the premises the subject of charge 9.  

15Your counsel submitted that at the time of your offending you were significantly under the influence of Xanax and you had no memory of your crimes and you have offered no explanation to the court for what you did.  Whatever the motivation, your offending involved the complete disregard of the security, welfare and property of your victims.  You either entered or attempted to enter occupied private homes in the early hours of the morning during a drug-fuelled criminal rampage.  When police sought to intervene and arrest you, you drove a stolen vehicle in a highly dangerous and criminal manner.

16Offending of this nature strikes at the foundation of a secure society and the well-being of its citizens, and it is the responsibility of this Court to send an unequivocal message to that society that the courts will protect its citizens by the imposition of significant penalties upon conviction for grave offences of this nature. 

17Whilst you are a young offender, a matter I will turn to below, in my opinion general deterrence is a significant sentencing consideration in this case and you must also be deterred from reoffending.  As I have already stated, you have a relevant criminal history and were on youth parole when you committed these serious crimes. 

18I have received in evidence victim impact statements from Constable Nathan and Senior Sergeant Nixon detailing the traumatic effect that your offending has had upon them.  While carrying out their lawful duties as police officers you exposed both of them to the risk of serious harm.  Your offending has in turn impaired their capacity to carry out their duties due to the trauma that they have suffered.

19I have also received in evidence victim impact statements of two of the victims of the aggravated burglaries that you committed.  They too have suffered significant trauma by reason of your offending.  Their sense of personal security and well-being has been profoundly disrupted. 

20I now turn to your personal circumstances. 

21You were born in Melbourne on 14 May 2000 and are now aged 20.  You were 19 at the time of this offending.  You are a young offender for the purposes of the Sentencing Act1991 (Vic) and more generally the principles in relation to sentencing young offenders are engaged in your case.

22You are the only child of your parents and have one stepsister.  I accept that from a young age you were exposed to drug abuse and extensive family violence.  Tragically your father took his own life in 2009.  Your mother repartnered and you have the continuing support of Zoltan Radosavljevic, who you regard as your stepfather.  You also have the support of your aunt, Ms Kylie Szabo, a qualified educational support worker, who provided a thorough and helpful reference to the Court and also gave evidence on your behalf.

23Your formal education was severely disrupted by the chaotic environment that you initially grew up in, although you completed primary school at Noble Park Primary before moving to Noble Park Secondary College in 2013.  You were expelled from that school due to behavioural difficulties and completed Years 7 to 9 at Oakwood Community School, despite the fact that you did not have a stable residence.

24Your mother's drug use and abusive behaviour towards you resulted in you leaving home at approximately the age of 12 and it appears that you were forced in effect to fend for yourself.  Yours is an all too common story of a child subjected to abusive and at times criminal behaviour by your parents, who were more concerned with drug abuse and offending than providing for your welfare. 

25I have received in evidence a detailed psychological report prepared by Dr Annabel Chan, a clinical and forensic psychologist, setting out your background, developmental history and psychological profile.  Your drug abuse began at the age of 12, using a range of drugs either supplied to you by your mother or stolen from her.  Dr Chan also concludes that you suffer from complex post-traumatic stress disorder and notes that in the past you have been diagnosed with bipolar disorder, schizophrenia, depression and anxiety.

26It would appear that, whilst you continue to exhibit some symptoms of psychosis, a firm diagnosis of schizophrenia has not yet been made in your case.  Dr Chan tested you for the risk of you committing further crimes of violence and concluded that you pose a high risk for future general violence, although she did also conclude that there is no evidence of 'psychopathic personality construct'.

27In this context it is significant that when your offending occurred in this instance you were the subject of a Youth Parole Order, as I have said, and had only recently been released from youth detention.  It would also appear from your criminal history that the offences for which you had been placed on parole were of a similar nature to those before the court.  This is consistent with the finding by Dr Chan regarding your risk of reoffending.

28Your counsel submitted that whilst imprisonment was open in your case the appropriate disposition was nevertheless your detention in a Youth Justice Centre.  In order to fully consider this submission I directed that you be assessed for suitability for such an order.  I have received in evidence a comprehensive pre-sentence report prepared and endorsed by two Youth Justice workers.  The report details the extensive materials that the authors considered in its preparation.

29The report also addresses the criteria set out in s.32 of the Sentencing Act1991 (Vic) and other relevant factors and concludes that you are not suitable for such an order.

30The report does not conclude that there are reasonable prospects for rehabilitation in your case. It notes that when you were released on youth parole you had access to a range of supports intended to address your criminogenic needs and despite this, you offended in a 'very serious manner' shortly after your release.

31The report also concludes that you are not particularly impressionable, immature or likely to be subject to undesirable influences in an adult prison.  It states that you have been in adult custody since 11 December 2019 and have settled into the prison environment without significant incident. 

32Your counsel also tendered in evidence your Justice Health records and I accept that the records note that you continue to suffer from auditory hallucinations and you have developed obsessive compulsive disorder whilst in custody.  However, it is also clear that you have access to regular medical and psychiatric assessment and treatment and you have recently been prescribed medication to assist your mental health.

33I do not accept that the contents of the records suggest that your mental health was not adequately considered by the authors of the Youth Justice report; however, I do accept that, as a young offender, adult prison carries a greater degree of hardship for you and I also accept that imprisonment may compound the symptoms of your chronic post-traumatic stress disorder and associated psychological disturbance.

34Whilst it is clear that I am required to make my own assessment of the criteria provided for in s.32 of the Sentencing Act 1991 (Vic) and consider for myself the competing sentencing considerations in your case, I do not accept that there is a proper basis for me not to accept the conclusions reached by the authors of the Youth Justice report. Furthermore, Mr Kane Lines, the Youth Justice Officer called by your counsel to give evidence in relation to the report in the absence of Ms Weatherell, one of its authors, did not give any evidence that materially qualified the contents of the report.

35I am also required by operation of s.32(2) of the Sentencing Act 1991 (Vic) to have regard to the nature of your offending and to your age, character and past history. As I have already observed, your offending is of the utmost seriousness and was committed whilst on youth parole for similar offending. You are now 20 years and 4 months old. I accept that your background is one of deprivation and disadvantage and I have given this important matter considerable weight in my assessment of the s.32 criteria.

36Furthermore, I accept that principles 5 and 6 set out by the Court of Appeal in R v Verdins (2007) 16 VR 269 are engaged in your case.

37Nevertheless I am not satisfied that the purposes for which this sentence is to be imposed would be met by the imposition of a Youth Justice Centre Order in your case and I am firmly of the opinion that a term of imprisonment is the only appropriate proportionate sentence available to me.

38In Azzopardi v The Queen (2011) 35 VR 43 the Court of Appeal stated that where the degree of criminality in the offending requires the sentencing objectives of deterrence, punishment and the protection of the community to be more prominent in sentencing, the weight to be attached to youth and the role of rehabilitation is correspondingly reduced. This is such a case and, in my opinion, whilst your future rehabilitation remains an important consideration in this case, general deterrence and the protection of the community are the principal sentencing considerations to be applied by me.

39Furthermore, it is clear from the evidence before me that your prospects for rehabilitation are to be approached with caution and you are described by the Youth Justice Officers who authored the s.32 report as 'within a pre-contemplative stage of change'.

40It would also appear that you have not addressed the gravity of your offending and apparently were unable to provide your counsel with any instructions in relation to the offending for which you were the subject of youth parole.

41Your counsel also submitted that I am required to have regard to the principle of parity in sentencing by reference to the sentence passed on your co-offender in the Children's Court.  He was sentenced pursuant to the provisions of the Children, Youth and Families Act2005 (Vic) and that sentence regime excludes general deterrence as a sentencing consideration in relation to children. He was 17 at the time of the offending and, whilst he too had a relevant criminal history, he was not the subject of a recent youth parole order for similar offending as you were. For these reasons in my opinion it is open to me to impose a disparate sentence in your case to the sentence imposed on your co-offender.

42Finally, I have hard regard to the fact that you fall to be sentenced during the COVID-19 pandemic and this has increased the burden of imprisonment upon you.  However, you have regular contact by telephone with Ms Szabo, appear to have regular medical appointments and you are gainfully employed in the prison and for the most part appear to have adapted to life in adult custody whilst on remand. 

43In the result the sentence of the court is as follows -  

44On charge 1 you are convicted and sentenced to be imprisoned for 3 years.  This sentence is the base sentence.

45On charge 2 you are convicted and sentenced to be imprisoned for 18 months.

46On charge 3 you are convicted and sentenced to be imprisoned for 3 months.

47On charge 4 you are convicted and sentenced to be imprisoned for 12 months.

48On charge 5 you are convicted and sentenced to be imprisoned for 12 months.

49On charge 6 you are convicted and sentenced to be imprisoned for 1 month.

50On charge 7 you are convicted and sentenced to be imprisoned for 6 months.

51On charge 8 you are convicted and sentenced to be imprisoned for 3 months.

52On charge 9 you are convicted and sentenced to be imprisoned for 2 years and 6 months.

53On the related summary offence you are convicted and sentenced to be imprisoned for 1 month.

54I direct that 6 months of the sentence on charge 2, 3 months of the sentence on charge 4, 3 months of the sentence on charge 5, 3 months of the sentence on charge 7, 3 months of the sentence on charge 8 and 6 months of the sentence on charge 9 be served cumulatively on each other and cumulatively on the sentence imposed on charge 1. 

55This makes for a total effective term of imprisonment of 5 years. 

56I direct that you serve 2 years and 6 months before becoming eligible for release on parole.

57I declare you have served 294 days by way of pre-sentence detention not including today. 

58But for your plea of guilty I would have imposed a total effective terms of imprisonment of 6 years and 6 months with a non-parole period of 4 years. 

59All licences held by you are cancelled and you are disqualified from obtaining a licence in the State of Victoria for 5 years from today. 

60Are there any further orders required, Mr Porceddu?

61MR PORCEDDU:  Can I confirm that a disposal and forfeiture order has also been signed by you, Your Honour?

62HIS HONOUR:  It will be. Have they been filed ?

63MR PORCEDDU:  That's correct, Your Honour, they've been filed.

64HIS HONOUR:  Thank you.

65MR PORCEDDU:  Yes, Your Honour.

66HIS HONOUR:  Any further orders, Ms Rolfe?

67MS ROLFE:  No, just administrative, though, Your Honour, in relation to yesterday's matter, it couldn't proceed.

68HIS HONOUR:  Yes.

69MS ROLFE:  I'd seek in the circumstances an Appeals Costs Fund certificate.

70HIS HONOUR:  Yes, I made that order yesterday that there'll be a certificate and it's been signed and will be delivered to you. 

71MS ROLFE:  Thank you, Your Honour.

72HIS HONOUR:  All right.  Thank you.  So those orders will be prepared and delivered by my staff to the parties.

73HIS HONOUR: The court will now adjourn until 9.30 tomorrow.

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