Director of Public Prosecutions v McMahon
[2019] VCC 1304
•16 August 2019
V
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00675
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW MCMAHON |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Bendigo | |
DATE OF PLEA HEARING: | 31 July 2019 | |
DATE OF SENTENCE: | 16 August 2019 | |
CASE MAY BE CITED AS: | DPP v McMahon | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1304 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: Car jacking – theft – trafficking in a drug of dependence – unlawful assault
Legislation Cited: Crimes Act 1958
Cases Cited:Director of Public Prosecutions v Murphy [2019] VCC 413; R v Pantsis: [1998] VSCA 134; Holland v R [2019] VSCA 173; Nhat Hoang v R [2013] VSCA 287; Collins v R [2015] VSCA 106; Ryan v R [2016] VSCA 255; Director of Public Prosecutions v Levi [2018] VCC 1925; Director of Public Prosecutions v Graham Jock Austin [2018] VCC 1849
Sentence: Total effective sentence of 12 months’ imprisonment with a Community Correction Order of 12 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Cordy | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr C Terry | Stary Norton Halphen |
HIS HONOUR:
1 Matthew McMahon, you have pleaded guilty to one charge of carjacking, which carries a maximum penalty fifteen years’ imprisonment; one charge of theft of petrol, which carries a maximum penalty ten years’ imprisonment; two charges of trafficking in a drug of dependence, namely, GBL and methylamphetamine respectively, which carries a maximum penalty for each of fifteen years’ imprisonment and a summary charge of unlawful assault, which carries a maximum penalty three months’ imprisonment and/or 30 penalty units.
Circumstances of offending
2 The circumstances of the offending were set out in the Summary of Prosecution Opening dated 25 July 2019, which was read aloud in open court on the plea. You committed these offences with a male co-accused, Joel Coutts, and a female co-accused, Ebony Murphy. You had known them for a number of years. Coutts was aged 27, Murphy was aged 25 and you were aged 24.
3 In the early hours of 25 October last year, you and Murphy were in your associate’s house and you were placing rock salt into a Ziploc bag to pass off as methylamphetamine. Murphy was with you. Coutts was elsewhere at the house of a female friend, Nicole Page. Facebook messages were exchanged between you and Coutts that they needed a car badly. These messages went nowhere and then Coutts contacted one of the victims, Mark Rayner, and sought a lift from White Hills to Eaglehawk.
4 Coutts and Rayner were known to one another, but for some reason, unknown to you, Coutts held a grudge against Rayner, and he was probably planning more than just to borrow the car. Rayner’s partner, Channa Bird, who owned the car, drove Rayner to White Hills, where they picked up Coutts, and the three of them drove to Eaglehawk. As they drove to Eaglehawk, Coutts showed Rayner a tomahawk he had with him and remarked on how sharp it was.
5 When the three of them arrived at Eaglehawk, Coutts got out of the vehicle and walked over to where you and Murphy were waiting and spoke to the two of you for approximately 30 seconds. The three of you then returned to the car. You and Murphy were not known to Bird or Rayner at the time.
6 Coutts went to the rear passenger door, opened it, and retrieved his tomahawk. He then removed the protective cover from the blade while you threw the bag of rock salt into the car. You then reached into the driver’s window, where Bird remained seated, and pulled the keys out of the ignition. Bird said words to the effect of “no way”. Coutts approached the front passenger side, where Rayner was seated. He was holding the tomahawk at Rayner’s head in a threatening manner. Coutts said “get out of the car you fucking dog”. Rayner responded with ““what’s all this about?”
7 Murphy looked away, as she anticipated an assault was about to take place. Coutts then hit Rayner with the hand in which he holding the axe, causing injuries. He started bleeding profusely. Murphy then looked back and later described the injuries as “pretty fucking brutal”. The prosecution, however, does not allege that the injury to Rayner was caused by the axe, rather it was caused by a blow delivered by Coutts while holding the axe. Further, the prosecution does not allege that you were complicit in this assault.
8 You then threw the keys to Coutts, who walked around the back of the vehicle, still holding the tomahawk. Coutts shoved Bird away as she tried to get the keys back. He then got into the driver’s seat. Bird said “you’re not taking my car, no!” You then got into the front passenger seat. Bird tried to get Coutts out of her car and saw that he was still holding the tomahawk in his right hand. Bird was petrified and in fear of her life. Murphy began walking towards the car before being told by you “get in, get in”. Murphy got into the rear of the vehicle. Bird asked Coutts if she could get her personal items out of the boot, to which Coutts replied “nah, fuck off”. The prosecution do not allege that you were complicit in the theft of Bird’s personal effects. It is also alleged that your actions contributed to Bird being placed in fear for her personal safety, particularly the forcible removal of keys from her car (Charge 3, carjacking contrary to s79 of the Crimes Act 1958; Charge 5, unlawful assault).
9 Coutts then drove the stolen vehicle to a BP service station on Eaglehawk Road, Long Gully, and parked next to a bowser. In the meantime, you and your two co-accused had a conversation about money to pay for fuel, but none of you had any.
10 At the petrol bowser, Coutts and Murphy remained in the vehicle. You got out of the passenger side and pumped 59.43 litres of fuel into the vehicle for a total of $96.80 while leaving the passenger side door open. This was observed by the service station attendant and recorded on CCTV (Charge 4, theft of petrol).
11 After the petrol incident, the stolen car was driven to Burns Street in Spring Gully, where Coutts threw Bird’s clothing in a suitcase out of the car boot. Coutts also then wrote offensive graffiti directed at Rayner on the vehicle. You were then taken back to an address in Eaglehawk.
12 At approximately 12.25pm on 26 October 2018, the stolen vehicle was seen by Detective Senior Constable Andrew Heazlewood, where it had been parked in Grace Street. The vehicle was found bearing offensive graffiti directed at Mark Rayner.
13 The stolen vehicle was photographed and forensically examined. You and Coutts were forensically linked to the vehicle.
14 Murphy was arrested and interviewed by police on 26 October 2018. During Murphy’s interview, she implicated both co-accused.
15 On 29 October 2018, you were arrested in the front yard of an address in Truscott Avenue, California Gully. Your phone was seized on arrest. You were subsequently interviewed and your phone analysed and photographed.
16 Between 24 October 2018 and 28 October 2018, messages on phones belonging to you and Murphy indicated you were attempting to sell drugs. Messages indicated that you had acquired a large amount of gamma-butyrolactone (GBL), which you and McMahon made attempts to sell for cash or an exchange for other items. Messages on your phone indicated that you were also selling methylamphetamine. Messages included:
17 On 25 October 2018:
“i.[You] sent a message to ‘Nicole’ at approximately 9.14am ‘I got heaps of oj mate neet it gone asap I got like 15 litres.’ She replies, ‘Yeah nah nah nah fuck that bud. I steer clear of that poison,’ and he says ‘same but good money $$$$$’
ii.[You] sent a message to ‘Jess’ saying ‘Oi got heaps of juicc cubt I mean heaps come see me.’
iii.MURPHY sent a message to [you] saying ‘o’m pretty sure I have drinks sold for either stuff or coin cause melbs is dry,’ and then says ‘they charging 250@20ml.’”
(sic)
18 On 26 October 2018:
“i.[You] received a message from ‘Seb’ asking ‘Can I roll that 3 into a half’ to whichvcv[you] replie[d], ‘No way brother an half’s ars 200’
ii.In a conversation between Indee MURPHY and [you], admitted to giving Ebony MURPHY drugs and also indicates [you] that she is with COUTTS. [you] said he would be at Nicole PAGE’s address. [you] also said you had three litres of ‘juice’ but that it is at ‘The stage before juice’. Indee MURPHY said she believed it is GBL and says she has someone who will buy it. [You] asked how much Indiee MURPHY could sell it for, and said that you had been told by many people that it is GBL.
iii.In a text sequence between [you] and MUPRHY, which began at approximately 11.41am, MURPHY indicated that she had received $200 for drugs and [you] indicated that you would be able to sell what you had for at least $1000.”
(sic)
19 On 27 October 2018:
“i.COUTTS messaged [you] at approximately 7.59pm saying ‘Hey man what’s goin on with these tools cause if ya can’t get the cash and shit my mate will still take them the one I was going to sell them too in the first place.
ii. At approximately 8.51pm [you] messaged ‘Samantha’ saying ‘trying to get some now’ in response to her message saying ‘hey u got anything?’
iii.[You] also received a message from ‘Jacqui ARNOLD’ saying ‘how much coin you have?’ to which he replies ‘have 800 in an hour or so just waiting fo this bike to be biked up if plus I hot a g sold for 350 so whay ever she cam do.’ She later said, ‘hold long till you have the rest of the coin and how much you want? You said 100 now, are you wanting 3? Or more on tick?’ [You] replied ‘More on tick I got a g sold for 350 to so if she can do a g plus the 3 that be awesome’ and then says ‘then when sell then I buy a ball as well’
iv.You received a message from ‘Dave’ saying ‘Still got that oj bro?’ to which you repl[y] ‘yeah brother why rhat’ and later says that the buywer hasn’t paid and [you are] [I think – check] is trying to sell to get ‘shard’.”
(sic)
20 On 28 October 2018:
“i.You sent a message to ‘Maty’ saying ‘Can I get half or a g got more sales’.”
21 Coutts, Murphy and you were remanded in relation to the offending. While in custody, you made phone calls using the Arunta phone system, which monitors and records calls. The following admissions were made in relation to the offending:
22 You said to your sister, “Can you inbox Ebony MURPHY and see if she’s out?”. “If she’s out, I’ve got something for you to say to her”, “it’ll get me out of hail (sic) because she was there.” You also asked your sister to change your Facebook password as the police had your phone. (Charge 1, trafficking in a drug of dependence, namely, gamma-butyrolactone and Charge 2, trafficking in a drug of dependence, namely, methylamphetamine).
Maximum penalties
23 As outlined above, you have been charged with:
·carjacking (simpliciter), which carries a maximum penalty of fifteen years’ imprisonment.
·Theft, which carries a maximum penalty of ten years’ imprisonment.
·Two charges of trafficking in a drug of dependence, which carries a maximum penalty of fifteen years’ imprisonment.
·Common law assault, which carries a maximum penalty of three months’ imprisonment.
Pre-sentence detention
24 You were remanded in custody on 29 October 2018. The period between 29 October 2018 and 16 August 2019 is 302 days, or nine months and nineteen days, inclusive of 16 August 2019.
Procedural history
25 Murphy was remanded in custody on 26 October 2018. At a committal mention on 20 February 2019, her matter was resolved and bail was granted. At her plea hearing on 27 March 2019, she pleaded guilty to carjacking, theft of petrol, trafficking a drug of dependence (to wit GBL), and committing an indictable offence whilst on bail. On 29 March 2019, Murphy was sentenced to sixty-six days’ imprisonment (pre-sentence detention of sixty-six days declared time served), and was placed on an eighteen month community correction order. Importantly, she provided an undertaking to give evidence at the committal hearing on 5 April 2019 against her two co-accused.
26 You were remanded in custody on 26 October 2018, and at a committal mention on 1 February 2019, upon a bail application, bail was refused. At your committal hearing on 5 April 2019, you agreed to plead guilty to all charges and your application for bail was refused. The plea hearing subsequently came on before this Court in Bendigo on 30 July 2019.
Seriousness of the offences
27 The essence of the offence of carjacking is the theft of a motor vehicle with the use of force or the threat of force. Here, both the owner of the car, Ms Bird, and the passenger, Rayner, were subjected to force. Rayner suffered painful injuries.
28 In her Victim Impact Statement, Ms Bird related the effect on her as follows:
“After this traumatic incident occurred my mental health and confidence in myself has decreased dramatically. I cannot go in public due to the stress. Since the incident I have no car and at the time I was home-less so I relied on my car to keep me mobile and for shelter …[Further] the car was full of all the items I owned for eg a suitcase of clothing bedding and my medication which I relied upon. Before this I had re-built (sic) my life. My father had purchased my car for me so it had so much sentimental value to me. I am now constantly in fear of my life I’ve tried to drive friends cars but it just makes me relive that day Im unable to go out in society and enjoy my normal activities. I have PTS disorder and find it difficult to be social with anyone. Ive been isolating myself and my mental health has deteriorated severely. A few times I have felt suicide since this incident. Since this incident I have financially struggle[d] due to homelessness and I have had not enough money to get my car fixed and roadworthy.”
(sic)
29 Although you only agreed to be involved in the carjacking moments prior to the carjacking itself, it is clear that you were an active participant insofar as you grabbed the keys out of the car while Ms Bird was sitting in the driver’s seat, and you thereby placed her in fear for her own safety. Your actions are to be contrasted with those of Murphy, whose involvement in the carjacking was accepted by the Crown and the sentencing judge as limited. Murphy only entered the car at your direction after you and Coutts had effected the theft.
30 You had participated in the theft of the vehicle from the owner and driver (Ms Bird) and the passenger (Rayner). The theft was accompanied by acts of violence and threats of violence.
31 With respect to the theft of the petrol, it is noteworthy that this is a prevalent offence and it is clear that you were an active and willing participant.
32 You have pleaded guilty to two charges of trafficking in a drug of dependence and your counsel has submitted that this was on the lower end of the scale. The learned prosecutor did not demur from this proposition.
33 Your plea of guilty to the unlawful assault on Ms Bird arises out of the fact that she was placed in fear by your actions of forcibly removing the keys from her car under her protest.
Prior convictions
34 From the age of twenty, you have either been found guilty or convicted of theft on four different occasions. You also have convictions for possessing a dangerous article in a public place, contravening a family violence safety notice, wilfully damage to property and assault with a weapon. In the meantime, you have been placed on two community correction orders for twelve months, the latter being on 19 December 2017.
35 On that date, you were found guilty of breaching the first community correction order by further offending and placed on a further community correction order. It is apparent that the further offending before this Court constitutes a breach of the second community correction order.
Community correction order assessment
36 At the request of this Court, a community correction order assessment was made on 31 July 2019. The report confirms that you have contravened your current community correction order via conditions and further offending. It was further stated by the author:
“During the assessment interview, Mr McMahon appeared to have little insight into his offending behaviour, blaming his drug use as the cause of his actions. He did however state that he accepts the consequences of being found guilty of his offences and expressed motivation to take his life on a more pro-social direction. Mr McMahon indicated no barriers to completing the proposed CCO.”
37 It is noted that you were found to be at “high risk of re-offending”.
Personal circumstances
38 At the plea hearing on 31 July 2019, your counsel set out your personal circumstances as follows:
“Mr McMahon is currently 25 years of age. He was 24 years at the time of the offending.
Mr McMahon was raised by his parents, Matthew McMahon Snr (58 years - retired car detailer) and Fiona McMahon (54 years – home duties). He has a brother and a sister.
Mr McMahon is of aboriginal heritage on his mother’s side. He has not any real exposure to indigenous culture, nor identified with any particular indigenous group prior to going to prison. He has commenced learning some aspects of his aboriginal background whilst speaking to an elder whilst on remand.
Mr McMahon attended high school at Eaglehawk Secondary College until the end of year 9. He struggled throughout his schooling with dyslexia. As a result of this dyslexia, Mr McMahon found it difficult to read and write. This, in-turn, led to behavioural problems that ultimately saw the staff ask him to leave after year 9.
Mr McMahon was a keen sportsman in his childhood and teenage years. He played football for Eaglehawk until mid-teenage years when he suffered a significant hip injury. He went back to football, playing for Serpentine after having a hip operation, but suffered ongoing effects of this injury and ceased playing football at approximately age 17.
After leaving school, Mr McMahon commenced work as a plasterer with a local company. He had done occasional work for this employer since the age of 13. Mr McMahon worked plastering with the same employer until approximately age 20. Despite repeatedly asking his employer to formally register him as an apprentice, this never occurred. Mr McMahon eventually saw that he was not going to progress with that employer and left this job.
After leaving his platering (sic) job, Mr McMahon obtained employment with a company that employed him to do traffic management. He made quite good money in this job compared to his previous role – earning up to $1700 per week with overtime.
In the lead up to the offending, work became sporadic and Mr McMahon increased his use of drugs in his down-time.
As his drug use increased in the lead up to the offending, Mr McMahon’s parents would not allow him to continue to stay at the family home. They did not tolerate his drug use and he was forced to couch-surf and occasionally sleep-rough.
Upon his eventual release from prison, Mr McMahon intends to initially live with his parents at their home, 31 Trusscott Avenue, Eaglehawk.
He is willing and able to comply with the conditions of a CCO. He is also confident that he will be able to get work again with the traffic management company he was working for prior to being remanded in custody.
…
Mr McMahon has spent almost the entire duration of his 9 months in custody at MRC. He is working in the prison Metal Works and holds a position as a welder.
He has been incident free in custody and has adapted to prison routines.
Mr McMahon has completed a number of courses and certificates whilst in custody that he will bring to court.”
Sentencing Submissions
39 Your counsel relied on the following factors in mitigation, to wit:
“a) Plea of guilty – early opportunity;
b) First period of imprisonment;
c)Relatively young offender – 24 years at time of offence, 25 years now;
d) Lack of extensive relevant prior convictions;
e)Objective gravity of the offending – relatively low level example of principal offence of carjacking;
f) Parity with co-offender Ebony Murphy;
g) Stable and supportive family;
h) Reasonably good prospects of rehabilitation - availability of employment, accommodation and family support.”
40 Further, it was submitted in oral submissions that your parents, having initially banished you on account of your drug use, are now willing to receive you back into the family to assist in your rehabilitation.
41 I was told that there would be work available for you on your eventual release by a former employer, who has shown a disposition to assist in the rehabilitation of youthful offenders. This submission was accepted by the learned prosecutor.
42 Nonetheless, the prosecutor submitted that a combination sentence should not be ordered. In particular your trafficking offences showed you to be an integral part of the industry in the local area which was having devastating results on the youth in around Bendigo. It was further submitted that because of the principles of specific deterrence and general deterrence, a term of imprisonment with a non-parole period would be the most appropriate measure. Alternatively, the prosecutor submitted that if a combination sentence was to be entertained, a further period of imprisonment of up to twelve months followed by a community correction order would be appropriate.
43 This is to be contrasted with your counsel’s submissions that, although it was conceded that you should be sentenced to a term of imprisonment, in all the circumstances, that period should not exceed the period of time which has been spent on remand, in combination with a community correction order.
44 I have accepted the matters in mitigation outlined by your counsel but I have also accepted the submissions of the prosecutor with respect to the seriousness of the offences. Perhaps, fortunately for you, the sentences must nonetheless reflect the principles of parity referred to below.
Sentencing principles
45 In sentencing you, I must have regard to a range of different factors. I must give effect to the principles of deterrence, both general and specific. I must deter other people from behaving like you. I must deter you from repeating such behaviour, though, because of the matters put on your behalf, which I accept, with respect to your prospects of rehabilitation, specific deterrence could be modified here. I must express the community’s denunciation of your conduct and promote your rehabilitation.
46 With respect to general deterrence, I take note of what Tadgell JA said in R v Pantsis:[1]
“[T]he judge was entitled, as he did, to place considerable emphasis upon the principle of general deterrence. A very, very high proportion of the criminal cases that we see in this court is drug related, whether or not they are cases of offences against legislation relating to drugs of addiction. The fact is that drugs breed crime of all kinds, and heroin is one of the more pernicious of them. It truly poisons society. It is the responsibility of the courts to do what they can – and I fear that it is little enough – to curb this menace. One way open, one of the very few open to the courts, is to emphasise to the community at large, by reference to the principle of general deterrence, that, if legislation is infringed in the way in which the applicant infringed it, the consequences will be dire.”
[1][1998] VSCA 134 at paragraph [12]
47 I believe the same can said in relation to methylamphetamine, with it becoming more prevalent in our community over the last decade.
48 I must also have regard to current sentencing practices for offences of the kind you have committed, and I must balance your personal circumstances. I am also mindful of the materials provided by counsel concerning sentencing snapshots, and I must balance submissions made by the prosecution that a sentence higher than the median is required here, because it is not considered that there is low-level offending compared with the submissions made by your counsel that, in effect, you were at the low level of this organisation and you were only involved in order to finance your own addiction.
49 On the latter point, it is recognised that addiction may be a consideration when sentencing offenders for trafficking in drugs of dependence. The addiction may also bear upon the question of rehabilitation, where the prospects of success will often depend upon the likelihood of the addiction being successfully treated.[2]
[2]See Nhat Hoang v R [2013] VSCA 287 at paragraph [25]
Parity of sentencing
50 A significant part of your counsel’s plea was the reliance on the sentence afforded to Ms Murphy with respect to similar charges.
51 The legal principles applicable to a consideration of parity of sentencing were reiterated recently by our Court of Appeal in Holland v R,[3] which state:
[3][2019] VSCA 173 at paragraphs [20] and [21]
“The legal principles applicable to a complaint of disparity are not in dispute. In Collins v The Queen,[4] they were summarised in the following terms:
‘Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a ‘marked’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed. However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did. When an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way he or she did, the approach is relevantly analogous to that which arises where it is said that a sentence is manifestly excessive.’
To similar effect is the following summary of the principles in Ryan v The Queen:[5]
‘As to parity, an appellate court will intervene where there exists such a manifest discrepancy between the sentences imposed on co-offenders as to engender a justifiable sense of grievance that justice has not been done. The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria, it does not involve judgment about the feelings of the person complaining of disparity. Because sentencing is a discretionary exercise the authorities emphasise that the disparity must be ‘marked’ or ‘manifest’. No justifiable grievance arises in circumstances where differences between co-offenders mean that it was reasonably open to the sentencing judge to differentiate in the way in which he or she did.’”
(Footnotes omitted.)
[4][2015] VSCA 106
[5][2016] VSCA 255
52 Ms Murphy’s prior convictions were alluded to by her sentencing judge, his Honour Judge Murphy, at paragraphs 21-24 therein, and are set out as follows:
“21I turn now to your prior convictions. You are now aged 25 and have admitted prior convictions commencing in November 2013. You have two without conviction dispositions for respectively recklessly causing injury in November 2013 and unlawful assault in February 2014. You also have a number of driving convictions in 2015 and 2016. Significantly, without conviction on 18 November 2016 you were placed on a CCO for 12 months on charges of possession of methylamphetamine, possession of a drug of dependence, possessing a controlled weapon, and you were also convicted of two charges of unlicensed driving.
22On 20 June 2017 you were convicted and fined $500 for possessing methylamphetamine. On 27 November 2017 you were brought up for breach of the community corrections order. The breach was found proven and the order was extended until 26 November 2018. Thus when you committed these offences you were on a community corrections order. As I have indicated, you were also on bail.
23In your criminal record it is significant that you have been dealt with leniently for drug offences when you were placed on the community corrections order without conviction.
24Your offending here, in terms of your antecedents, which now include theft of a motor vehicle and possession of a schedule 4 poison, as well as drug possession offences, shows that save for the offending in 2013 and 2014 for assault-type offences, your record for violence and dishonesty offending is thin.”[6]
[6]DPP v Murphy [2019] VCC 413
53 Further, Ms Murphy was prepared to give evidence against you and your co-offender, Coutts, as set out by his Honour as follows:
“28On 15 February this year while still in custody you gave a four page statement outlining the full circumstances of the lead up to the carjacking, and subsequent actions of those involved. You have given evidence before me that the statement is true and correct and that you are prepared to give evidence against your two co-offenders if required. The prosecution accepts that the statement provides very significant evidence in the prosecution of your two co-offenders.
29The Court of Appeal has emphasised in a number of cases the importance of sentencing courts effectively rewarding those offenders who are prepared to assist in the prosecution of other offenders. It is in the community interest that all offenders be brought to justice and those who are prepared to facilitate this must in the community interest be rewarded with substantial sentencing reductions. The reduction also rewards the insight associated with your cooperation with the authorities, and also the risk that those who are prepared to give evidence against co-offenders face when that becomes known.
30In this case I do regard it as appropriate to give a substantial reduction in sentence due to your willingness to cooperate with the authorities in the prosecution of the two co-offenders whose cases are still in the Magistrates Court in the committal stream.”
54 Further, with respect to expressions of remorse, I note his Honour’s comments with respect to Ms Murphy at paragraph 31 to the following effect:
“As a further matter I do regard the statement that you have given and the willingness to give evidence as evidencing your remorse and insight into your offending. In your record of interview you effectively recognised the error of your ways in participating in this offending and you have taken it further now by your undertaking to give evidence. There was also evidence of remorse in the community corrections assessment.”
55 This could perhaps be contrasted with the comments referred to above in the Community Corrections’ Assessment with respect to your insight. However, I do accept that your plea of guilty, which is to be contrasted with your co-offender, Coutts, who is contesting the charges, is evidence of remorse, and you are entitled to the benefit of the social utility of such a plea.
56 When Murphy’s sentence was handed down on 29 March 2019, the sentencing judge commented:
“The overall circumstances show in the Court's view little premeditation on your part, and the matter is best perhaps seen as one where a dependent or vulnerable female goes along with criminality by dominant males.”(You and Coutts)[7]
[7]DPP v Murphy (supra) at paragraph [14]
57 The theft of the petrol is to be contrasted with the actions of Murphy, where the sentencing judge stated:
“… your role was merely being in the vehicle when the three of you agreed that petrol would be stolen from the service station.”[8]
[8][Supra] at paragraph 18
58 As stated earlier, Murphy was charged with trafficking GBL only, whereas you had been charged and pleaded guilty to trafficking methylamphetamine. Whilst I consider that the sentence handed to Murphy with respect to this offence was overall lenient, I have curtailed the sentence with respect to your trafficking the two drugs of dependence to coincide with the principles of parity contained above.
59 I also note your counsel’s submissions that discounts for providing evidence against co-accused can often be made in the order of 50 per cent of a sentence, which he submits would translate to a comparison of approximately four months with respect to Murphy, and your nine months on remand.
60 Nonetheless, I consider your role of trafficking in methylamphetamine and also in respect to the carjacking as set out above, is significantly more serious involvement than that of Murphy.
Comparative cases
61 The prosecutor tendered a Sentencing Snapshot with respect to trafficking in a non-commercial quantity of drugs and robbery, which I have taken into account. I have also had recourse to two County Court decisions of Director of Public Prosecutions v Lenny Levi,[9] a decision of her Honour Judge Hogan, where a carjacking offender with a similar degree of accompanying force was sentenced to two-and-a-half years’ imprisonment for that offence. I have also had recourse to a decision of his Honour Judge Wraight in Director of Public Prosecutions v Graham Jock Austin,[10] where his Honour sentenced an accused, with a similar accompaniment of force, to eighteen months’ imprisonment on that charge.
[9][2018] VCC 1925
[10][2018] VCC 1849
62 As already stated, I regard your role in the carjacking of far greater seriousness compared to that of Murphy, but nonetheless, because of the principles referred to, I will moderate your sentence with respect to this offence accordingly.
Sentence
63 I now turn to sentence you.
64 Mr McMahon, would you please stand.
65 On Charge 1, trafficking in a drug of dependence, being gamma-butyrolactone, you are convicted and sentenced to three (3) months’ imprisonment. This is part of an aggregate sentence with Charge 2.
66 On Charge 2, trafficking in a drug of dependence, namely, methylamphetamine, you are convicted and sentenced to three (3) months’ imprisonment as part of an aggregate sentence with Charge 1.
67 On Charge 3, carjacking, you are convicted and sentenced to twelve (12) months’ imprisonment and a twelve-month community correction order. This will be the base sentence.
68 On Charge 4, theft of petrol, you are convicted and sentenced to one (1) month’s imprisonment.
69 On the uplifted summary charge of unlawful assault, you are convicted and sentenced to fourteen (14) days’ imprisonment.
70 I direct that all periods of imprisonment are to be served concurrently with the sentence imposed on Charges 3.
71 The total effective sentence is therefore twelve (12) months’ imprisonment with a twelve-month (12) Community Correction Order.
72 Pursuant to s18(4) of the Sentencing Act 1991, I declare that you have already served 302 days of the sentence, not including today, that I have just imposed upon you, and this is to be noted in the records of the court.
73 Pursuant to s6AAA of the Sentencing Act, but for your pleas of guilty, you would have been sentenced to a term of imprisonment of two years with a non-parole period of eighteen months.
74 As a consequence of the conviction on Charge 3, all licences you hold are cancelled and you are disqualified from driving for a period of twelve months from 26 October 2018.
75 Upon your release from prison, for the following twelve months you are under a Community Correction Order, which means that you are required to attend at the Bendigo Community Corrections Office within two clear working days of your release. The mandatory term, as no doubt your counsel will have explained to you, is that you have to be under their supervision for the following twelve months, which means you have to tell them if you change your address or if your change your mobile phone number, and receive visits if they want to visit you.
76 You also have to undertake any treatment and assessment that they require, which will include drug screens and mental health assessment and treatment if they direct it, and you are to continue with your psychological counselling.
77 I thank counsel for their assistance.
78 Please remove the prisoner.
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