Director of Public Prosecutions v McLoughlin

[2017] VCC 1337

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 17-01289

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROUGEN MCLOUGHLIN

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Bendigo
DATE OF HEARING:
DATE OF SENTENCE:	18 September 2017
CASE MAY BE CITED AS:	DPP v McLoughlin
MEDIUM NEUTRAL CITATION:	[2017] VCC 1337

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Doyle
For the Accused	Ms D. Mitchell

HER HONOUR:

1Rougen McLoughlin, you have pleaded guilty to one charge of recklessly causing serious injury, Charge 1 and one charge of armed robbery, Charge 2.  The maximum penalty for recklessly causing serious injury is 15 years' imprisonment.  The maximum penalty for armed robbery is 25 years' imprisonment.

2The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea hearing, Exhibit A.  On 8 December 2016, you went with a co-offender to steal money, drugs and a utility vehicle from the victim.  The co-offender was the organiser of this enterprise and got you to assist him.  Your co-offender set up a meeting with the victim to buy drugs from the victim.  On the way in the co-offender's car, the co-offender told you that you were to stay in the co-offender's car until the co-offender brought the victim to the car.  The co-offender would then say, "Have you got the money?"  You then were to get out of the car, point a shot gun at the victim and demand that he hand over his belongings.

3I accept that at this point, although a "shotty" had been mentioned in an earlier text message about the planned robbery, you had not thought that you would have to use the gun.  When you said you did not want to do it, your co-offender threatened to bash and shoot you.  You said you had never used a gun before and you both pulled over into some bushes.  The co-offender showed you how to use the sawn-off shotgun.

4The two of you met up with the victim and his girlfriend outside a residential address.  As planned, the co-offender went to speak with the victim about drugs and came back with him to the car.  You were still in the car.  You say that the code phrase was used and you got out of the car.

5At around that time, the co-offender hit the victim to the head and went to the victim's car.  The victim came towards you and you shot the victim in the right knee.  The victim collapsed to the ground.  His girlfriend came to assist him.  Your co-offender yelled at you to get into the victim's car.  You drove off in the victim's car with the shotgun, while your co-offender drove off in his car.

6You were interviewed on 12 December 2016.  You admitted shooting the victim.  Your plea of guilty was indicated on the morning of the committal hearing.  You made a statement detailing your involvement and the co-offender's involvement.

7The victim suffered significant injuries to his right knee and leg and left leg.  He suffered tissue and nerve damage.  He was hospitalised with multiple surgeries.  The victim did not wish to make a victim impact statement, but on the material provided, I am satisfied that he is likely to be adversely physically affected on an ongoing basis.

8Your co-offender has indicated that he intends to plead not guilty.  That matter is listed in a future circuit for trial.

9In sentencing you, I have taken into account your personal circumstances.  Those circumstances were set out by your counsel and in the psychological report of Mr Warren Simmons, 20 July 2017, Exhibit 3.

10You are now 21 years old.  You were 20 at the time of these offences.  Your parents were involved in drug use and there was violence within that relationship.  You effectively grew up at your paternal grandmother's house.  The Children's Court was involved with you from when you were about 15.

11On your instructions, you were diagnosed with attention deficit hyperactivity disorder at six or seven, depression at ten and post-traumatic stress disorder at 16.

12You have had a couple of relationships.  You have a relationship with a young lady at present whom you ring every day.

13You commenced alcohol use at the age of eight and cannabis use at the age of 11.  You commenced using other drugs when you were 13 or 14 and by the time you were 15, you had developed a heroin addiction.  You went on a methadone program and ended up injecting methamphetamine by the time you were 16 and a half.  You had been using cocaine prior to this offending.

14You had a disrupted education but you have completed Year 11 during a period of time in a Youth Justice Centre.  You are working towards obtaining qualifications in hospitality and have an ambition to be a chef.

15You have admitted a significant prior criminal history.  You have had multiple Children's Court appearances for offending, including offences of violence and dishonesty.  In 2014, on charges including recklessly causing serious injury, you were sentenced to 12 months' detention in a Youth Justice Centre.  In February 2015 in the Bendigo Magistrates' Court on various mainly dishonesty offences, you were placed on an 18 month community correction order.  That was breached by further offending and in August 2016, the community correction order was varied to an 18 month order commencing 12 August 2016 and that is just four months prior to this offending.

16Mr Cummins in his report says,

"Mr McLoughlin's psychiatric history appears to be quite complex, with clear evidence of Attention Deficit Hyperactivity Disorder, depression in the context of chronic poor self-esteem, Post-Traumatic Stress Disorder, both as a result of his experiences growing up and more recently from the offence for which he is currently before the Court and possibly anxiety.  It was more difficult to find clear evidence of a bipolar mood disorder, particularly as there has been a long history of substance abuse, but there is certainly a personality disorder with marked borderline and antisocial personality traits.  In addition, he would meet the DSM V criteria for Substance Use Disorder."

17Mr Simmons goes on to describe various matters which he said may assist you in the way of programs and treatment.  He says in respect to your rehabilitation the following.

"Mr McLoughlin's early childhood as meant he has little focus in life, makes poor decisions and prizes drugs over most other aspects of his life.  This combined with his trauma symptoms means that he struggles to make constructive plans and is more likely to be self-destructive and erratic.  Given this history, it is unlikely that Mr McLoughlin will make major changes in his life in the immediate future as it will take some time for changes to occur if they are to at all."

18In sentencing submissions, your counsel referred to a sentence of imprisonment that you received on 23 May 2017 in respect of offences which were mainly drug offences but included injury and assault offences.  These matters are subsequent rather than matters of prior criminal history but they are relevant to the sentencing task.

19You were sentenced to eight months' imprisonment with 160 days reckoned as served by way of pre-sentence detention.  On that same date, the breach of community correction order was dealt with and you were resentenced to four months' imprisonment.  Three months of that sentence was to be concurrent with the eight month sentence.  You made enquiries and have been told that your sentence will be complete on 22 September 2017.  Your counsel submitted that that matter ought be taken into account in application of the principle of totality.

20Your counsel also addressed your role in this offending which she said was organised by your co-offender.  Your counsel submitted that you were intimidated by your co-offender.  You accept that you discharged the firearm in the direction of the victim but say you did not intend to shoot him.  Your counsel submitted that general deterrence ought to have a reduced role in sentencing you.

21In mitigation, your counsel relied on a number of matters including your cooperation with police, your youth, remorse, your post-traumatic stress disorder and what she described as your reasonable prospects of rehabilitation.

22Your counsel accepted that imprisonment with a non-parole period would be the likely outcome but submitted that there should be a lengthy parole period available to you with substantial concurrency between sentences.

23The prosecutor in sentencing submissions submitted that this offending was at the higher end of armed robbery.  He referred to the gun discharging and the overlap between the offences.  The prosecutor submitted that this was also a serious example of recklessly causing serious injury.  The prosecutor submitted that your history of violence ought to reduce the impact of youth on your sentence.

24Rougen McLoughlin, this is clearly serious offending.  The maximum penalties demonstrate the seriousness of this offending.  You agreed to go with someone you thought was intimidating and potentially violent to rob someone of money, drugs and a car.  You were aware that a shotgun was to be involved.  You were prepared to go along with the plan to spring a trap on the victim and produce the shotgun and make a demand.  You pulled the trigger and caused a serious injury with ongoing consequences.  This must have been extremely frightening for the victim and his girlfriend.  You then drove off without rendering any form of assistance to the injured man.

25I consider this offending to be more serious than mid-range in terms of both armed robbery and recklessly cause serious injury, although not towards the highest end.  I do not accept that you are not a suitable vehicle for general deterrence.  It is important that others stand up to intimidation and not go along with plans such as this.  I do accept that you were intimidated and would not have instigated this armed robbery on your own volition.  That reduces your moral culpability to some degree.

26I accept that the co-accused was the organiser and planner of this armed robbery.  He provided the weapon, ammunition and instructions on how and when to use it.  He pressured you into being involved and using the weapon.  I accept you pulled the trigger in a somewhat panicked state and not as a result of any cold hard calculation or intention to cause serious injury.  However, you have pleaded guilty to recklessly cause serious injury and there was a very significant degree of recklessness involved in your actions with the gun.

27You are entitled to a significant discount for your plea of guilty.  That plea of guilty had had the benefit of saving the trauma, expense and inconvenience of a trial.  I also accept that your plea of guilty is an expression of genuine remorse and respect to the injury caused.

28In reference to the apology that you say you gave the victim's girlfriend at the time, I consider that that must have had very little impact, given that you drove off without rendering assistance and she was left with a badly injured and bleeding boyfriend.

29You are entitled to rely in mitigation on your admissions to the police and your cooperation with the police.  I have no information or submissions as to the usefulness of your statement.  Your co-offender was known to the victim, so it was not necessary for you to identify that person in order to enable police to investigate that person.  Your admissions in respect to yourself are clearly a mitigatory factor.

30There remains the issue of your youth and rehabilitation.  You are a youthful offender.  In that situation, rehabilitation would often be the principal sentencing consideration.  In this case, your lengthy and relevant criminal history, together with the seriousness of this offending led to a conclusion that other sentencing considerations of denunciation, just punishment and general deterrence must be given significant weight in sentencing you, reducing the mitigatory impact of your youth.  I consider your rehabilitation prospects to be guarded in view of your drug and alcohol issues and offending history.  Mr Cummins' opinion is also relevant.

31Your offending occurred in the context of a very unstable upbringing, mental health issues and long-standing drug and alcohol issues.  It is clear that you would benefit from long term assistance with those issues if you were prepared to engage in and be compliant with treatment suggestions.  It is also very important that you engage in some vocational training.  It is positive that you say that you enjoy hospitality and wish to work towards qualifications in that area.  Your prospects of rehabilitation would clearly improve if you were able to deal with your drug and alcohol issues, be appropriately treated for mental health issues and develop trade skills.

32I consider it important to avoid a crushing sentence given your youth and despite your relatively low prospects of rehabilitation, I have set a somewhat lower non-parole period that I would have otherwise for the same reasons.  It will be up to you whether you are prepared to remain offence free in custody and work towards being released on parole. If you are able to achieve that, then you have the ability to lead a productive and law abiding life.

33I have taken into account that the sentence that you received in May this year was your first sentence of adult imprisonment.  I have also taken that sentence into account in application of the totality principle.

34A sentence of imprisonment is clearly warranted in this case for the purposes of denunciation, just punishment, general deterrence, specific deterrence and community protection.  I have also considered totality and proportionality when considering the appropriate degree of cumulation.  Some cumulation is appropriate to reflect the injury caused to the victim.

35Could you please stand up?

36On Charge 1 of recklessly causing serious injury, you are convicted and sentenced to three years' imprisonment.

37On Charge 2 of armed robbery, you are convicted and sentenced to three years and six months' imprisonment. 

38The sentence on Charge 2 is the base sentence.  Six months of the sentence on Charge 1 is to be served cumulatively on the sentence on Charge 2.

39The total effective sentence is four years' imprisonment.

40I fix two years and three months as the period you are required to serve before being eligible for release on parole.

41But for your plea of guilty, I would have sentenced you to a term of imprisonment of six years with a non-parole period of four years.

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