Director of Public Prosecutions v McMahon

[2013] VCC 1018

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-00315

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL McMAHON

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 May 2013
DATE OF SENTENCE:	30 May 2013
CASE MAY BE CITED AS:	DPP v. McMahon
MEDIUM NEUTRAL CITATION:	[2019] VCC 1018

REASONS FOR SENTENCE

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Catchwords: 18 months W/S for 2 years

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Holding
For the Accused	Mr F. Stuart

HIS HONOUR:

1       Just remain seated, if you would, Mr McMahon.  Michael McMahon, you have pleaded guilty to each of the three charges on Indictment C12722190.

2       Charge 1 is a charge of attempt to pervert the course of justice, for which the maximum penalty is 25 years' imprisonment; Charge 2 is a charge of dealing with the proceeds of crime recklessly for which the maximum penalty is 10 years' imprisonment, and Charge 3 is a charge of perjury for which the maximum penalty is 15 years' imprisonment.

3       In sentencing you I have regard to the maximum penalty for each offence, as I must.  You can see from the penalties prescribed by the Parliament for this kind of offending that it is regarded very seriously by both the Parliament and the courts.

4       The circumstances of your offending are summarised in a summary of prosecution opening for the plea dated 27 May 2013.  That document was tendered and marked as Exhibit A on the plea and read to the court by the learned prosecutor, Mr Holding.  It has attached to it a schedule of equipment, part of which relates to your offending.  It is not necessary that I here again recite what is contained in the summary, except in brief form.

5       Between late April and June of 2012 you dealt with one Peter Trakovski, a person who was engaged, unbeknownst to you, in stealing expensive building equipment, such as forklifts, scissor lifts, boom lifts and the like.  You were introduced to him through a person employed at the Moonee Valley Council, who it seems also did not know that equipment that Trakovski was dealing in was stolen.  You purchased equipment from Trakovski and paid cash for it.  Later it was brought to your attention that the equipment was stolen, and these charges relate to the steps taken by you in what might be called an attempt at damage control.

6       You arranged for one of your employees, one Rusic, to make a false statement to the police, that is Charge 1, and you made a detailed statement to the police which you knew to be false and signed it.  The statement is in the form prescribed by the Criminal Procedure Act and has appended to it an endorsement that the maker makes a statement and acknowledges that if it is false, he is subject to the penalties of perjury.  That is Charge 3. Charge 2 occurred when you moved machinery that you had purchased to another location after you had found out that it was stolen.

7       This is serious offending, there can be no doubt, but I accept that you did not know that the equipment was stolen when you first purchased it, and the offending occurred only after you found out that it was stolen in circumstances where you panicked and did not think the position through.  I think the steps that you took in panic were partly out of concern for what the consequences might be, and secondly, because after a long period in your life of successfully running a number of businesses, you were embarrassed by the situation in which you found yourself in the latter part of June 2012.

8       You had been duped, and to put it bluntly, the conduct that you had engaged in made you look stupid in contrast with the well-deserved reputation as a businessman that you appeared to have developed. 

9       I admitted into evidence as Exhibit 2 on the plea a number of references from your solicitor, Mr Zanelli, your accountant, Mr Zock, and other people who have dealt with you in business and socially, one of whom was the local sergeant of police.  What comes through from the references is that this offending aside, you enjoyed a well-deserved reputation for honesty, for being a good businessman and for making a valued contribution in many ways to the community.  This offending aside, you have led an unblemished life, and all that needs to be taken into account.

10      You have no prior convictions whatsoever at the age of 62.  Much of your history as a family man and businessman is recorded in a psychological report prepared by Bernard Healey at the request of your solicitors.  I do not need to repeat the history that is there set out.  What comes through that report, and also from the references that I earlier referred to, is that you are shocked and embarrassed for your conduct, and I accept that you are truly remorseful.  I have formed the strong view that the chances of you reoffending again in this way are so low as to be virtually non-existent.

11      In passing sentence, I have taken into account all of the matters referred to in Mr Healey's report, and the references tendered on your behalf.  Mr Holding concedes the evidentiary weight that should be placed on those references.

12      You have pleaded guilty to the charges, and you indicated an intention to do so at the filing hearing.  I treat you, for the purposes of sentencing, as having indicated an intention to plead guilty to these charges at the earliest possible opportunity.  In my view, you are entitled to a substantial reduction in sentence for having done so.  The plea of guilty and the timing of the indication of the plea of guilty is further evidence in my view of your complete remorse for what you have done.

13      A conviction for these offences will impact on you.  I was told and accept that you are a director of companies and that you travel abroad for those purposes.  A conviction for these offences will probably impact upon your ability to remain a director of the companies that you are involved in and will probably impact upon your ability to travel, at least to some countries in the world.  That is a consequence,  I think, that cannot be avoided.

14      This offending is of a kind that strikes at the heart of the administration of justice.  For that reason, the guiding principle in sentencing is that of general deterrence, and the sentence imposed by the court must send a clear message to those who would engage in this sort of conduct, as you have, that if they do so, the sentencing of the court will be stern in order to deter people from engaging in this sort of conduct.

15      For that reason, notwithstanding the fact that the machinery in question here seems to have all been recovered, although yourself and others remain out of pocket, that being essentially as a result of the offending of Trakovski, nevertheless, the sentence must be in my view the imposition of a term of imprisonment.  Anything less than that would not adequately address application of the principle of general deterrence.

16      However, in the circumstances of this case, and having regard to the role that you played in this offending, I am of the view that it is appropriate that any sentence of imprisonment I impose be wholly suspended.

17      Mr Holding in submissions, appropriately in my view, conceded that any disposition in the form of a term of imprisonment that was wholly suspended would not be outside an appropriate range.  Accordingly, that I think as a matter of fairness in sentencing should be followed in this case.

18      On Charge 1, attempting to pervert the course of justice, you are convicted and sentenced to a term of imprisonment of 12 months.

19      On Charge 2, dealing with the proceeds of crime recklessly, you are convicted and sentenced to a term of imprisonment of 12 months.

20      On Charge 3, of perjury, you are convicted and sentenced to a term of imprisonment of 18 months.

21      That makes a total effective sentence of 18 months.

22 Pursuant to s.27(2) of the Sentencing Act 1991, in the circumstances of this case, I wholly suspend the operation of the term of imprisonment imposed for an operational period of two years.

23      Mr McMahon, I am obliged to explain that sentence to you.  The total effective sentence that I have imposed for your offending is 18 months.  Pursuant to the power I have, I have wholly suspended the operation of that sentence for a period of two years.  The purpose of imposing the term of imprisonment is to reflect the seriousness of the offending.  The purpose of suspending the operation is to enable you to continue your commitment to full rehabilitation, but you must not in the period of the next two years commit any offence punishable by a term of imprisonment.  If you do, you will be in breach of the suspended sentence I have imposed, and you can be brought back before me and short of a miracle, you will go to gaol.  Do you understand?

24      PRISONER:   Yes, I do, Your Honour.

25      HIS HONOUR:  There must be exceptional circumstances to prevent you from going to gaol.  So please don't breach the suspended sentence I have imposed.

26      Are there any matters arising out of that, Mr Holding?

27      MR HOLDING:  No, Your Honour.

28 HIS HONOUR: For the purposes of s.6AAA of the Sentencing Act, I declare that I have imposed a term of imprisonment for your offending.  Had it not been for your plea of guilty I would have imposed a term of imprisonment of four years, and I would have fixed a non-parole period of two years and four months.

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