Director of Public Prosecutions v McMahon

[2017] VCC 734

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR -17-00784

DIRECTOR OF PUBLIC PROSECUTIONS

v

BARRY JAMES MCMAHON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	8 June 2017
CASE MAY BE CITED AS:	DPP v McMahon
MEDIUM NEUTRAL CITATION:	[2017] VCC

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	Mr K. Doyle	Office of Public Prosecutions
For the Accused	Mr D. Taylor

HIS HONOUR:

1Barry McMahon, you have pleaded guilty to one charge of perverting the course of justice and also pleaded to one summary matter of committing an indictable offence whilst on bail.  Those crimes carry maximum penalties of 25 years and three months' respectively.

2You are now 41 years of age.  You do have a significant criminal history and you have been gaoled before.  You have now been in custody, as I understand it, since November of last year in relation to various matters.  Your earliest release date, on what I am told, is 26 June this year and you are currently undergoing a two month sentence with a 12 month community corrections order to follow.

3You pleaded guilty at the earliest reasonable opportunity.  Whilst remorse would undoubtedly be problematic you must get that utilitarian benefit of that plea of guilty and I take those matters very much into account. 

4The circumstance of the offending can be described in very brief terms. 
You were given a six month gaol sentence in the Magistrates' Court. 
You appealed it and were released on bail.  In October of last year when the matter was to come on for hearing before Judge Maidment of this court you, in an endeavour to obtain an adjournment, arranged for or yourself basically made a false document which purported to be a medical report from the Latrobe Regional Hospital saying that you had serious brain tumour and it was requiring radiotherapy. 

5That letter was handed to Judge Maidment and partially at least, because of that letter, your matter was adjourned sine die.  It then came to the attention of police, through your own insistence in fact, that the letter was, indeed, false. 
You were interviewed in respect of it and made appropriate admissions.

6The crime of attempt to pervert the course of justice is a very wide ranging one and as has been referred to in some decisions can range from the trifling to the extremely serious.  Insofar as you are concerned I regard it as being at the lower end but nevertheless deserving of a short period of imprisonment. 
Yours was to obtain an adjournment, it was not to affect an outcome.

7Had your behaviour involved a plea being done on your behalf in the sentencing propose the sentence I would have imposed for this would be very different indeed.  However the crime itself has to be regarded as serious in itself and whilst as I have said to counsel, most application for adjournments or many applications for adjournments in this court, I do not believe. 

8There must be an aspect of general deterrence.  In your situation I think specific deterrence probably will not play such a great part but there also has to be the denunciation of misleading a court in such a way because it does strike at the heart of justice and also an appropriate punishment, which I have discussed with your counsel.

9Tendered on your behalf was a reference from Mr Ball, a psychologist known to me, which says essentially that there is no Verdins involved in all of this. 
You had a very dysfunctional childhood. There have been alcohol problems in the past and you have at times, probably at the time of this offending I suspect, reverted to the use of drugs.

10I take into account aspects of totality, as I have said, for various reasons which I do not have to really outline here.  You have been in custody now since November of last year.  There is no pre-sentence detention for this matter.

11What I am going to do in the circumstance is, taking into account that your rehabilitation is up to you and the risk of you re-offending is problematic that you be on the charge of attempted to pervert the course of justice sentenced to be imprisoned for a period of one month.  That is to be followed by a community corrections order with conviction of 12 months which is to run concurrently with any other community corrections order being undergone.  The condition, as an additional punishment, will be 200 work hours.  On the summary charge, seven days concurrent.

12There is no other - I will just get that printed.  There is no other orders I have to make is there?

13MR DOYLE:  No, Your Honour.

14(At this stage the court proceeded with another matter.

15HIS HONOUR:  That one month is declared to be concurrent.  I say that because of the indictable offence on bail charge which is cumulative unless
I otherwise order.  So the one month's concurrent.  All right do we know who - yes thanks, Mr Taylor.  Yes thanks for that.

16MS TAYLOR:  Thank you, Your Honour.

17HIS HONOUR:  You can take him now, gentlemen.

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