Director of Public Prosecutions v McMahon
[2017] VCC 148
•28 February 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-16-01723
Indictment No. G11906565
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW WINSTON McMAHON |
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| JUDGE: | HIS HONOUR JUDGE JORDAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21, 22 and 28 February 2017 |
| DATE OF SENTENCE: | 28 February 2017 |
| CASE MAY BE CITED AS: | DPP v McMahon |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 148 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – arson – guilty plea
Legislation Cited: Sentencing Act 1991
Cases Cited: R v Verdins & Ors (2007) 16 VR 269
Sentence:Convicted and sentenced to 5 years’ imprisonment with a non-parole period of 2 years and 6 months.
Section 6AAA declaration: Conviction and sentence of 6 years and 6 months’ imprisonment with a non-parole period of 4 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J S Livitsanos | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr G A Georgiou SC | James Dowsley & Associates |
HIS HONOUR:
1Mr McMahon, you have pleaded guilty to one charge of arson. The maximum penalty is 15 years’ imprisonment. The circumstances of your offending are set out in exhibit A, the detailed Summary of Prosecution Opening dated
13 February 2017. These facts are admitted save for a couple of matters defence counsel pointed to in oral submissions. They were in regard to some facts described in paragraphs 55, 71 and 74. I accept what the defence said about these paragraphs but they do not alter the sentencing task.2Exhibit B, CCTV footage from cameras on other buildings, also adds to the evidence of your offending. These exhibits speak for themselves and do not require anything other than a brief summary.
3You were the project manager of a large building and renovation project at the Albion Hotel in York Street, South Melbourne. At about 5.55am on Monday,
5 October 2015, you attended at the hotel. This was unusually early for you and was a time that would usually be almost an hour before other tradesmen would be expected to arrive. The works had been proceeding for six months or more. They were behind schedule and handover could not take place on the expected date. An official launch with 1000 plus invitations and major alcohol companies organised was already set for 23 October 2015.4On the morning of 5 October 2015, the CCTV film shows you repeatedly walking back and forth near the building and trying to gain access. This lasted for about
20 minutes. It involves you unsuccessfully trying to open a door and trying to force the door with your shoulder and then using a pole as a battering ram. Undeterred, at 6.16am, you eventually climbed onto a scissor lift vehicle parked in the street at the side of the hotel. This enabled you to get up high enough to enter the building via the second storey beer garden. Once inside, you went downstairs and lit a fire using a tarp and timber stacked in the middle of the room. You exited at 6.42am. You were thus inside the hotel for some
26 minutes or so. You then called triple zero at 6.44am.5Thus, at the site, you were going about the various tasks involved in your offending, including gaining entry, over a period of 45 minutes or so. The fire quickly spread. I accept it went well beyond your intended range of damage.
It effectively gutted the building. The total damages caused with respect to the hotel and other properties was $5.177 million. The Metropolitan Fire Brigade (“MFB”) was involved in a full day of firefighting. The cost, involving 46 firefighting appliances and 105 firefighters, was $336,000 or thereabouts. Not until 9.05pm did the MFB declare the event closed.6On the evidence, your motive involved you finding yourself unable to meet the deadline for completion of the building work. A fire was your idea to give you some time to postpone the completion date and also to put off the large opening function planned for 23 October 2015. You hoped to placate the client,
Matt Darcy, who you knew would be angry because, in your own words, “… we weren’t going to make it because we’d already been past the point where we weren’t going to make it and we were now at the next point”.7You had been engaged by Mr Darcy on projects in the past and hoped to have a continuing relationship with his projects. You were under financial stress and felt you were on the verge of bankruptcy is how you described your situation to your psychologist.
8I regard this as a very serious example of this type of offending. The evidence indicates there are a number of features which render it so. I will not refer to them all but simply mention a few.
9The fire was very large and very destructive. It involved significant financial losses. It occurred in a very built up area. Risks to adjoining properties and any person who may have been in them was obvious. One property even shared a common wall with the hotel. Damage in fact did occur to other properties.
10There was premeditation on your part. There was also a degree of planning involved. This was not spur-of-the-moment offending. You formed a plan to deflect attention away from you. Unusually, you instructed tilers to turn off the power on Sunday, 4 October 2015 when they finished work. This stopped the hotel video security from working when you arrived the next morning and started the fire.
11Back in early September 2015, your principal client on the Albion project,
Matt Darcy, told you about some drugs that were found at another hotel he owned in Richmond. You used this news to fabricate a threatening telephone call supposedly received by you on 19 September 2015. You informed various people at the Albion Hotel construction site about this alleged threatening telephone call and later made a signed statement to police about those false facts.12You used the false telephone call to deflect attention away from you, together with a fabricated story that on the day of your offending, you had been attacked by two masked men you thought were burglars at the hotel. They had knocked you unconscious. This caused the police to investigate this false story.
13Exhibit C is two Victim Impact Statements. These need no elaboration.
The business at the hotel is still not operating and it will remain out of action for some time yet.14I now turn to matters personal to you. A Brief Outline of Submissions was tendered on your behalf, exhibit 1. It sets out in detail your personal circumstances, and they do not require extensive elaboration.
15Exhibit 2 is a report from a clinical and forensic psychologist, Patrick Newton. He also gave oral evidence. Exhibit 3 is a group of written references from various lay people, together with a report from a psychologist in relation to your daughter, Shae McMahon. Exhibit 4 is a letter from you to your client, the Darcy Group, dated 8 August 2014 in relation to your engagement as the project manager for the Albion Hotel works. Exhibit 5 is a group of photographs of other building works you have project managed over the years.
16You are 48 years of age. You are a married man with two children.
The evidence indicates that you are a man of good character with no criminal record. You have a solid employment history and your offending is out of character. The evidence also indicates that after the police identified you as the offender and although you showed initial reluctance when interviewed, you have shown remorse.17The evidence from Patrick Newton, both in his report and orally, was that you suffer from a Generalised Anxiety Disorder that was evident to him when he saw you in March 2016. This consultation was apparently in relation to some Citylink infringements and e-TAG problems that had got out of hand. His evidence was that you would have been suffering from this anxiety condition at the time of the arson and indeed you still so suffer. His opinion was that this probably stemmed from childhood. It led you to become over anxious about day-to-day events including the delay on the project. This condition impacted on your decision making. He described the condition as moderate; it did not stop you from working.
18The evidence, including exhibits 3, 4 and 5, show you have worked in very responsible conditions. The condition was relevant to you responding to a problem in a way that was out of all proportion to the problem. A sense of panic resulted from the anxiety. Importantly, Mr Newton also said:
“Mr McMahon was generally able to discuss his situation logically. His moral reasoning remains intact, and there was no indication to suggest that he was ever unable to appreciate the wrongfulness of his actions. … .”[1]
[1]Exhibit 2
19Mr Newton also went on to say:
“Certainly there is no indication of any cognitive deficits, intellectual impairment or learning disorder.”[2]
[2]Exhibit 2
20He said treatment was needed when he saw you in March 2016 and you still needed treatment. You would have a heightened level of anxiety or more intense anxiety in prison due to your condition and being confronted with novel stressors.
21Defence counsel submitted that Mr Newton’s evidence enlivened Verdins’[3] principles. Those principles were as to reduced moral culpability, some sensible moderation of general and specific deterrence and that a prison sentence would weigh more heavily on you than on others.
[3]R v Verdins & Ors (2007) 16 VR 269
22The prosecution took issue with respect to the application of Verdins to moral culpability and deterrence. I accept the prosecution’s submissions that the evidence does not support the application of Verdins’ principles with respect to moral culpability and deterrence. The prosecution did concede that your Generalised Anxiety Disorder could mean a prison sentence would be more burdensome for you than for others.
23I have considered all the evidence including the passages from Mr Patrick Newton quoted above and considered the submissions and authorities I have been taken to. I am not satisfied that it has been established on the balance of probabilities that you suffered a mental impairment or impairment of mental functioning at the relevant times. I am not satisfied there is an evidentiary basis for moderating the principles of general deterrence in this case. The premeditation, degree of planning, indirect financial gain you hoped for, as well as the ruse developed to deflect attention away from you and the extent of the damage, are just some of the reasons your offending attracts the need for general deterrence.
24In any event, the prosecution also submitted that there was a lack of the necessary causal link between your offending and any mental impairment or impairment of mental function, if such were established on the evidence. In view of what I have already said, it is not necessary for me to comment any further on that submission.
25I am still prepared to moderate the weight to be given to specific deterrence in your case. This is not because of Verdins. It is more due to your lack of any criminal history, your background, your very good rehabilitation prospects including what you have done since being charged, as well as the support you have, as indicated by the evidence and by people attending Court.
26I am also not satisfied, on all the evidence, that your moral culpability is lessened on Verdins’ principles. In spite of what was submitted as to some lack of insight and your intent to only start a small fire, your awareness of the wrongfulness and likely consequences of deliberately setting fire to the hotel to suit your personal interests is clear. You were the project manager of the building works you were setting fire to.
27I do accept that your anxiety condition does add to the burden of imprisonment for you in a way that would not apply to others. I take that into account.
28On all the evidence put before the Court, I assess your prospects of rehabilitation as very good. Your counsel submitted a number of matters in mitigation. These included your personal circumstances involving family, personal and community support. Your good character and good work record were relied on. In spite of a setback after your offending was made public, you have kept working.
29Ultimately you confessed to the crime on 13 July 2016 after some reluctance initially when interviewed by police. Remorse was relied on and your plea of guilty does indicate that. Also the referees and Mr Patrick Newton support your remorse. This has to be tempered, to some extent, with the fact that you concocted a story to avoid detection which obviously misled the authorities for something like nine months from October 2015 to July 2016. Nevertheless you did plead guilty at the earliest Court opportunity at committal. I accept there is remorse indicated later on in your record of interview. The utilitarian benefits of saving time and expense for the community and sparing witnesses are obvious.
30I accept there was no direct financial gain by you but you sought indirect financial advantage by your offending. It is clear you wished to keep your principal client happy in view of your hope of gaining future work from that source.
31The risk of recidivism is low and as I have already indicated, you have very good prospects for rehabilitation.
32The risk of possible deportation was raised as while you have been in this country for some 36 years, you are not an Australian citizen. On the second day of the plea hearing, I granted a defence request for some time to put some evidence before the Court on this issue. This sentence will trigger a statutory cancellation of your visa. So you are at risk of deportation. Given the Ministerial discretion to revoke a visa cancellation that still remains in a case such as yours, the question of deportation remains somewhat speculative. I have no real evidence about what will happen or is likely to happen in your case in terms of that discretion. I am prepared to accept that the risk of deportation for a person of your background will make your time in prison more burdensome and I take that into account.
33In the same vein to some extent the effects on your family of a sentence of imprisonment will be an added strain.
34Other matters were urged on your behalf in mitigation in the written submissions and in oral argument, and I have taken them into account. Your counsel submitted that an immediate term of imprisonment was required. I agree.
He also submitted that a community correction order would accompany such a term. I do not agree. Undertaking the consideration required by s5(4C) of the Sentencing Act, the purposes for which your sentence is imposed cannot be achieved by a community correction order, even attached to a term of imprisonment.35As well as those matters personal to you to which I have referred, I must take into account other relevant sentencing considerations. Arson is a serious crime indeed. General and specific deterrence must be given weight in the sentence although as stated, specific deterrence is a lesser consideration in your case.
36The community will not tolerate offending which so seriously compromises its citizens’ right to feel safe, to own property and go about their lawful businesses. It is offending that puts at risk other people, adjoining properties and those fighting the fire. The message must be clear and consistent that appropriate punishment will result in the circumstances. Your sentence must manifest the community’s denunciation of such conduct and impose just punishment. I must protect the community from any repetition of this type of offending and must seek to deter others from offending which causes such devastation to property.
37This is, without doubt, a serious example of a serious offence. There is no sentencing option other than immediate imprisonment. In view of your very good prospects of rehabilitation, I will impose a longer than normal parole period. Stand up please, Mr McMahon.
38You are convicted and sentenced to five (5) years’ imprisonment. I direct that you serve two (2) years and six (6) months’ before becoming eligible for parole. I declare six days pre-sentence detention pursuant to s18 of the Act.
39Pursuant to s6AAA of the Act, I declare that but for your plea of guilty I would have imposed a sentence of six years and six months with a four-year non-parole period.
40I make the ancillary order that is consented to as to provision of a forensic sample and I adjourn the compensation application to a date to be fixed.
41MR LIVITSANOS: As Your Honour pleases.
42MR GEORGIOU: Your Honour pleases.
43HIS HONOUR: Take Mr McMahon, thank you. All right, thank you for your assistance, gentlemen.
44MR LIVITSANOS: As Your Honour pleases.
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