Director of Public Prosecutions v McMahon

[2017] VCC 1616

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00963

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANNON MCMAHON

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JUDGE:	HIS HONOUR JUDGE M. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	31 October 2017
CASE MAY BE CITED AS:	DPP v McMahon
MEDIUM NEUTRAL CITATION:	[2017] VCC 1616

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Dunham
For the Accused	Mr D. Dann

HIS HONOUR:

1Shannon McMahon, on 24 July a jury convicted you of intentionally causing injury to Quenton Peel.  That indictment had alleged alternative charges of intentionally or recklessly causing serious injury. 

2As shall become clear, there was no dispute at trial that Quentin Peel had suffered a serious head injury.  The issue was identity. 

3The jury has decided that you were his attacker, albeit  with only the intention of causing injury.

4On a second indictment, you are also to be sentenced for two charges of trafficking a drug of dependence and one charge of disobeying a court order to provide assistance in respect of a data storage device. That is an offence under s.465AA(9) of the Crimes Act.

5The applicable maximum sentences are ten years imprisonment for intentionally causing injury, fifteen years imprisonment for trafficking a drug of dependence and five years' imprisonment for the offence under s.465AA(9).

6You are also to be sentenced for summary offences of dealing with property suspected of being proceeds of crime;  the maximum sentence two years imprisonment,  failing to stop your motor vehicle at the direction of a police officer, maximum sentence six months imprisonment and possession of a prohibited weapon, maximum sentence two years imprisonment.

7You offended against Quentin Peel on 17 January 2015. However, you were arrested for all charges, with the exception of the s.465AA offence, on 1 October of that year. In the police interview you exercised your right to silence. There was a very short contested committal in June 2016. Originally in this court you faced indictable charges of intentionally or recklessly causing serious injury, trafficking, a more serious form of dealing with proceeds of crime and the s.465AA offence. It was agreed that there should be a separate trial on the serious injury offences. That first trial was aborted in April of this year. A second jujry was empanelled on 18 July. On 24 July it returned a verdict of guilty on the common law alternative of intentionally causing injury.

8I accept the circumstance that throughout this time the other charges were seen as subject to negotiation and potentially pleas of guilty.  In that context the proceeding was adjourned and on 12 October you pleaded guilty to the second indictment and indicated pleas of guilty to the summary matters. 

9You received the benefit of your pleas of guilty and the level of co-operation that short history of the proceeding shows.  Your pleas of guilty express remorse and have facilitated the interests of justice. 

10At your plea hearing, which ran on 12 October Mr Thomson for the Crown tendered the victim impact statement of Quentin Peel,  the notice of agreed facts, also tendered at trial, dealing with his injury and treatment and an amended Crown opening summarising the circumstances of the offences to which you plead guilty.  Quentin Peel read his victim impact statement in court. Mr Dann QC for you tendered a number of letters of character reference and the report of Professor Dennis Velakoulis, dated 11 April 2015, the neuropsychiatrist who treats your father. 

11I make the following findings of fact on the circumstances of your offending, consistent with the jury verdicts, having considered counsel's submissions and applying appellate court authority such as R v Storey and R v Chiro. 

12(The circumstances in respect of the plea offences are set out in the tendered Crown summary which is Exhibit C). 

13You assaulted Quentin Peel at about 12.45 am on 17 January 2015 outside The Astor Hotel situated on the corner of Lygon and Elgin Street in Carlton.  You had been inside the hotel socialising but not drinking alcohol.  You do not drink. Quenton Peel was walking west along Elgin Street outside the hotel and approaching the corner.  He was with his friend, Daniel Kennedy.  A CCTV camera within the hotel recorded footage of a window facing out to Elgin Street.  That footage was played to the jury and tendered.  Just prior to the offence it shows you walking east in Elgin Street to the left of camera, past the window and out of shot.  Within a very few seconds Quentin Peel is seen,  through the window, falling approximately backwards and toward Lygon Street, right of camera. 

14Consistent with the evidence of Daniel Kennedy, and with the jury verdict, I find that you punched Quenton Peel to the face three times in quick succession.  The description was a two-handed, three punch combination. 

15You are now aged 40, then 37, and Quenton Peel was then aged 32.  You have been a successful professional boxer.  Quentin Peel fell, likely already unconscious, and struck his head hard on the footpath.  He has no memory of the assault or any precursor.

16I can find no provocation on his part.  If not spontaneous, your decision to strike him was made very quickly and has no explanation.  You did not intend to seriously injure him, as the Crimes Act defines that, and did not have a state of mind as to it being probable that you would. I find likely that you did not turn your mind to it. You intended to injure him. Injury is defined in s.15 of the Act as:

"A physical injury or (b) harm to mental health".

17Part (a)  is the relevant description.

18The consequence of your assault is that Quenton Peel has suffered serious injury.  He was hospitalised.  CT scans revealed an undisplaced right skull fracture with some bleeding between the skull and outer layer of the brain.  There was some evidence of minor bleeding within the brain.  There was immediate surgery, a craniotomy, and reconstructive cranioplasty securing the bone with plates and screws.  That is described as successful. 

19He was discharged from hospital on 24 January.  It was noted there that he had residual high level cognitive deficits at this stage. 

20The final paragraph of the tendered notice of agreed facts is as follows.  "Peel had continuing problems with his speech and sleep with regular headaches for over a year and changed jobs because he was unable to function at the same level as previously.  He has now almost fully recovered".

21The victim impact statement of Quentin Peel gives further insight into the ongoing effects of his injury.  He describes his recovery as slow and painful.  He could not speak properly for months and describes the effect and fear he felt because of that.  There is a large scar.  He remains aware and can feel the metal plate.  Attached to Quenton Peel's statement are two photographs of the large stapled incision on the right side of his head.  There have been painful headaches, still to an extent present.  Sleep has been affected.  Work and career have been affected.  Disadvantage in his career remains,  as he explains.  There have been effects on his social and emotional life and symptoms of post-traumatic stress disorder.  These have lessened but are not completely resolved.  He is vigilant,  cautious  and less trusting.  There has been financial loss and disadvantage which has caused stress.  He feels anger and great difficulty in the realisation that it was your deliberate act, not accidental act, which has harmed him.  I am not complete. You did not intend his serious injury, but the impact upon Quenton Peel of your assault must be taken into account in my sentence of you.

22As stated, you assaulted Quenton Peel in the very early hours of 17 January 2015, but you were not arrested until 1 October of that year. 

23Police approached your vehicle near the unit at which you lived in Nelson Place, Williamstown.  You disobeyed their direction to stop and drove away.  This is the summary charge, failing to stop.  You were arrested shortly afterwards and under warrant your unit was searched.  Police located and seized 16 snap seal bags containing a total of 14.1 grams of cocaine and two plastic bags containing 2.57 kilograms of cannabis. 

24A traffickable quantity for cocaine is 3 grams and for cannabis is 250 grams.  These are the trafficking charges.

25The Crown summary values the cocaine at six to $8,000;  however, further evidence reduces that value because of its low purity at 36 per cent.  The cannabis is valued at between $7,500 and $12,000.  Both trafficking charges  are put on the basis of possession for sale; that is,  you were holding the drug, likely for others, to be moved through the commercial chain of distribution.  Police also located $8,000 in cash, the summary charge deal with property suspected of being proceeds of crime, and a can of mace possessing a prohibited weapon.  I accept that the mace was not yours.

26As to the $8,000 cash, I accept the submissions of Mr Dann that this is at the low end of the hierarchy of proceeds of crime offences set out at ss.194-195 of the Crimes Act. For example, you are not to be sentenced on the basis that you knew, were reckless or negligent about whether the money was proceeds of crime. These are more serious offences under s.194 attracting maximum sentences of five to 20 years. You are to be sentenced for the offence under s.195 which attracts a maximum sentence of two years imprisonment. The offence is dealing with the property if there are reasonable grounds to suspect it being proceeds of crime.

27Charge 3 on the second, that is the plea indictment, is that of disobeying a court order to provide assistance under s.465AA of the Crimes Act. During the 1 October 15 search police located two mobile iPhones. On 6 October they applied to the Magistrates' Court and an order was made under s.465AA(2) and (3) requiring you to provide passwords to access the phones. The order was served on your solicitor. Your solicitor indicated that you declined to do so.

28As stated you are 40 years of age.  You live in Coburg with your older brother who suffers schizophrenia.  You were raised and educated in the Fitzroy/Carlton area.  Your parents still live in Carlton.  Your father worked in excavation and demolition.  He is retired and in poor health.  The tendered neuropsychiatric report of Professor Velakoulis notes that he has suffered a stroke in early 2015 and is in cognitive decline.  There are differential diagnoses of Alzheimer's Disease and vascular dementia.  Your mother works as a chef and is your father's carer,  assisted by you.

29After Year 12,  you began and completed three years of a plumbing apprenticeship.  You have worked on and off for your father.  You are a qualified personal trainer.  You began boxing at 16; had 35 amateur and then 24 professional fights, winning 16.  You held the Australian Welterweight title and in 2010 fought for a version of the World Middleweight title.  Your sporting career at times cut into your employment.

30You have three prior court appearances but they are approximately 20 years old.  In 1999, you were convicted for offending of minor violence when you assaulted police.  There were also possession of proceeds of crime and state false name charges.  You were fined.  Your prior offending is of low relevance.

31The character evidence tendered is impressive.  You are presented as a trusted, generous and non-violent person who is family and community minded.  You have made very significant contribution over time to the Aboriginal community in  Fitzroy and Melbourne, including its youth.  You are not yourself Aboriginal. 

32Several person speak of their surprise at these offences and state that it is out of character.  You support your family's care of your brother and father in an important way. 

33I accept that you are a person of good character in the ways described;  that, as a mature man, you have not behaved violently despite your sport and ability.  It makes the offending against Quentin Peel the more inexplicable.

34You are to be sentenced for serious offences.  The offending against Quenton Peel has caused very substantial victim impact.  The nature, circumstances and consequences of your offending make relevant sentencing purposes and considerations of deterrence, your moral culpability, denunciation and proportionate punishment.  The significance of your professional boxing ability was raised at plea hearing.  That you were aware of your capacity is relevant to the culpability of the offence.  However,  as stated to counsel, I remain mindful that you are to be sentenced for the intention of injury, not of serious injury nor recklessness about that.  Your sporting capacity is also relevant to the related sentencing purposes of deterrence and community protection. 

35I have found that a sentence, including imprisonment, is the only appropriate one for your offending against Quentin Peel.  Bearing in mind the nature and extent of the character evidence about you, that is in some ways regrettable. 

36However, there are also significant factors which go to reduce the length of that sentence.  They include the following. 

37(1).  The evidence of your good character.  It is relevant in itself and also states genuine prospects for rehabilitation. 

38(2).  To some extent the circumstances of offending.  I accept, as put by Mr Dann, that some common features of aggravation are not present in the assault of Quenton Peel.  Particularly, it is clear that the decision to assault was made very quickly.   The traffic offences are not sophisticated examples of sale or commercial transaction.  You are entitled to the benefit of your pleas on those charges.

39(3).  There is now delay of two years since your arrest.  There has been no further offending. 

40(4).  I also find that knowledge your family will not have your support; for example respite in your mother's care for your father, will likely make imprisonment more difficult for you.

41I have decided that the appropriate sentence for intentionally injuring Quentin Peel; is a period of imprisonment but combined with a community corrections order.  The combined punitive aspects of that go to reduce the necessary period of imprisonment. 

42You have been found suitable for a community corrections order.  

43Mr Dann put that the drug traffic and other charges of October 2015, viewed separately, would not necessarily require a sentence of imprisonment particularly in light of your otherwise good character.  I agree with that submission and propose to sentence on those charges by way of community corrections order. 

44There will be, in effect, one community corrections order which should be seen as relating to all charges before me. 

45After considering and weighing what I see to be the relevant and competing matters, I sentence you as follows.  Stand up please, Mr McMahon.

46For one charge of intentionally causing injury in respect of indictment F13416783A you are sentenced to eight months imprisonment. 

47You are also sentenced on that charge,  and all other charges, that is the three indictable charges on F13416783B and the three summary charges, to a community corrections order of two and a half years duration after release from prison.  The usual terms apply.  There is an additional condition that you perform 350 hours of unpaid community work.  Sit down please.

48Are there other matters that I need to deal with?

49MS DUNHAM:  Yes, Your Honour, first of all, your associate has advised me that we needed a new court reference number, CR number, for the second indictment, so I just seek leave to amend that indictment and the accompanying notice of related summary offences.

50HIS HONOUR:  All right.  I suspect that there will have to be two community corrections orders printed out under those two headings.  We will do that now. 

51MS DUNHAM:  The second matter, Your Honour, is there is an order for a forensic sample, a forfeiture order in relation to the $8,000 cash and a disposal order.

52HIS HONOUR:  People have come here to support you.  I will allow them to speak to you for a short time before you are taken into custody, if there are matters you wanted to raise with them, but it will have to be short and it will have to be a little bit later. 

53MS DUNHAM:  And a disposal order in relation to the drugs found and the can of mace.

54HIS HONOUR:  All right, so, you will need to go back.  I was a bit distracted by things then.  So, there is a forensic sample order?

55MS DUNHAM:  Yes, Your Honour, there is a forfeiture order ‑ ‑ ‑

56HIS HONOUR:  There has not been one taken from him before?

57MS DUNHAM:  No.

58HIS HONOUR:  That is probably unsurprising, yes, all right.

59MS DUNHAM:  A forfeiture order which Your Honour has in relation to the $8,000 cash.

60HIS HONOUR:  Let us deal with the forensic sample order.  I do not think that was opposed; is that right?

61MR DANN:  No, Your Honour.

62HIS HONOUR:  I will make that order now. 

63(Order signed.)

64I have made an order that you supply a sample of your saliva.  It will be arranged in custody.  The reasons why I am doing this is the seriousness of the circumstances of offending, particularly, that related to Mr Peel.  It is not opposed, the order, for the reasons I stated in the public interest. 

65What will happen is you supply a sample of your saliva by cotton swab inside your mouth.  If you co-operate in that, that is the end of it.  If you do not co-operate, then a sample of blood may be taken by injection and reasonable force used. 

66What else is there, the forfeiture order? 

67MS DUNHAM:  Forfeiture order. 

68HIS HONOUR:  That is in relation to the drugs.

69MS DUNHAM:  No, that is in relation to the $8,000 cash.

70HIS HONOUR:  I see, yes, yes, I have signed those.

71(Order signed.)

72MS DUNHAM:  There is a disposal order in relation to the drugs located and the can of mace.

73HIS HONOUR:  Yes, hand that up, I will sign it.

74MS DUNHAM:  Your Honour will note that the phones are still listed on the order, but after discussions with my learned friend, those have been striked through.

75HIS HONOUR:  They have been deleted so they are not on what I am signing; is that right?

76MS DUNHAM:  They are on the order but they have got a strike through them. 

77HIS HONOUR:  I will initial them.  Is that what I should do?

78MS DUNHAM:  As Your Honour pleases.

79(Order signed.)

80HIS HONOUR:  How are we going on those orders?  Are they coming out and do we need two orders?

81ASSOCIATE:  Yes.

82MR DANN:  Your Honour, it was 12 October, was the date.

83HIS HONOUR:  Yes, thank you. 

84MR DANN:  The only other matter is - I am not sure whether Your Honour needs to - well, you probably do - need to make a 6AAA.

85HIS HONOUR:  I do not think you do when there is a ‑ ‑ ‑

86MR DANN:  Non-custodial.

87HIS HONOUR:  ‑ ‑ ‑ non-custodial.  Is that right?  It is a long time since I have looked at it.

88MR DANN:  Yes, well, I'll ‑ ‑ ‑

89HIS HONOUR:  It would be extremely difficult to disentangle these matters.

90MR DANN:  Yes.

91HIS HONOUR:  I mean, I indicate, bearing that in mind, it would have been a - I think I would have imposed therefore a longer duration community corrections order and more work, but I do not think it is necessary, and it is just impossible in cases like this to do anything. 

92We are just printing out the orders now. 

93Mr McMahon, I need to explain to you these community corrections orders, so if you would not mind standing again, I will do that now. 

94You will be asked to sign it, if you consent to it, and you will sign two documents, but it is the one order only for the same period and the same amount of work, so the system does not seem to be able to do it any other way. 

95It runs for two and a half years upon your release from prison.  The usual terms are that you do not commit another offence for which you could be imprisoned during the two and a half years.  You must comply with a regulation that prohibits you from attending any workplace or appointment affected by alcohol or drugs or in possession of illegal drugs 

96You must report to and receive visits from the Community Corrections people.  You must report to Community Corrections within two clear working days of your release.  Contact will be made with you in prison.  You must let Community Corrections know within two clear working days of a change of address or job.  You must not leave Victoria without getting their permission.  You must obey all of their lawful directions. 

97The additional term is that you perform 350 hours of unpaid work over that two and a half years.  Do you understand that?

98OFFENDER:  Yes.

99HIS HONOUR:  Do you consent to it?

100OFFENDER:  No.

101HIS HONOUR:  Mr Dann will talk to you.

102MR DANN:  I will approach him, Your Honour. 

103HIS HONOUR:  Mr Dann, no doubt you will tell him that consenting to this order does not in any compromise what steps he wants to take now about the jury verdict.  That may be what is concerning him. 

104MR DANN:  Yes, Your Honour. 

105HIS HONOUR:  Did you want to put anything to me, Mr Dann?

106MR DANN:  Sorry?

107HIS HONOUR:  Did you want to put anything to me?

108MR DANN:  No, no, I understand he will ‑ ‑ ‑

109HIS HONOUR:  He understands; does he?  He understands that he is not - you are not disadvantaged in anything else you want to do, if you want to appeal.  I say that to you now. 

110MR DANN:  He will consent.

111HIS HONOUR:  Yes, all right, now do you consent?

112OFFENDER:  Yes, Your Honour.

113HIS HONOUR:  All right, I will get you to sign both documents then.

114(Orders signed and acknowledged.)

115In a short time, Mr McMahon will have to be taken into custody.  People have come to support him and what I usually do in these circumstances is allow him to speak briefly to those people before he is taken downstairs.

116MR DANN:  Yes, I am grateful for that.

117HIS HONOUR:  I would be obliged if you would supervise it from an appropriate distance.

118MR DANN:  Yes.

119HIS HONOUR:  So you may speak to the people, family or friends who have come to support you, before you go into custody.  We will give you a copy of the corrections order, Mr Dann

120MR DANN:  Thank you, Your Honour.  I might approach.

121HIS HONOUR:  Yes, it has got to be short and I have got to remain here; that is the rule. 

122MR DANN:  Thank you, Your Honour. 

123HIS HONOUR:  Good, thank you, Mr Dann.

124MS DUNHAM:  Your Honour, could I just clarify, was the community correction order to go for two and a half years or ‑ ‑ ‑ 

125HIS HONOUR:  Yes.

126MS DUNHAM:  - - -three and a half years?  It is just the order says it will last for 42 months, on the one we have just been provided. 

127ASSOCIATE:  (Indistinct.)

128MS DUNHAM:  Two and a half years would be 30 months.  I understand the ‑ ‑ ‑

129HIS HONOUR:  Thank you for bringing it to my attention.  Is it sufficient, Mr Dann, if I make the correction now?

130MR DANN:  Yes, it's on both orders in both parts ‑ ‑ ‑

131HIS HONOUR:  Yes, I am sure I said two and a half years, yes.

132ASSOCIATE:  Sorry.

133HIS HONOUR:  That is what it should be, yes, that is right.  Is it necessary to bring him back and go through the whole thing?  I would have thought not.

134MR DANN:  No, no, he understands. 

135HIS HONOUR:  I have told him two and a half years. 

136MR DANN:  Yes.

137HIS HONOUR:  We just need to change the document.  I am obliged to you for pointing it out, thank you.  If it is handed up to me I think I should just change it by hand, should I not?

138ASSOCIATE:  I can do it.

139HIS HONOUR:  No, that would mean we would have to bring him back.  If I initial the change ‑ ‑ ‑

140MR DANN:  Yes.

141HIS HONOUR:  ‑ ‑ ‑ by hand that would be sufficient, I would have thought.

142MR DANN:  You will see it's in the top and the bottom.

143HIS HONOUR:  Yes, thank you.  I see, yes, I will need to do yours too, Mr Dann.  It is 30 months; is it not?

144MS DUNHAM:  Yes, Your Honour.

145MR DANOS:  Yes, Your Honour.

146(Orders changed and initialled.)

147HIS HONOUR:  You will be seeing him, will you not?  Tell him I have done this

148MR DANN:  Yes.

149HIS HONOUR:  I have done that to two versions of both.  Is that enough?  There is nothing else floating around that is ‑ ‑ ‑

150MR DANOS:  I am not sure what he - did he receive - was he ‑ ‑ ‑

151HIS HONOUR:  I do not think - he has not received one yet; has he?  No.  We will give that to you. 

152MR DANOS:  If Your Honour pleases.  Thank you, Your Honour. 

153HIS HONOUR:  I will hand down to you this extra copy, Mr Dann.  Hand that to Mr Dann.  Thank you for your assistance.  Thank you, Mr Dann, for your assistance throughout.

154MR DANOS:  If Your Honour please.

155MS DUNHAM:  As the court pleases. 

156HIS HONOUR:  Yes, you are excused, thank you. 

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