Director of Public Prosecutions v McMaster
[2012] VCC 881
•4 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01404
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LESLIE McMASTER |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 4 September 2012 | |
CASE MAY BE CITED AS: | DPP v McMaster | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 881 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Ayres Ms L Stevenson | |
| For the Accused |
HIS HONOUR:
1 Leslie Scott Alan McMaster, you have pleaded guilty to an indictment, charging you with the offence of aggravated burglary and an offence of theft, both of which took place on 29 September 2011.
2 Your have also admitted a number of prior convictions, which are set out in the further presentment.
3 You, I understand, have been taken to a summary of prosecution opening, which was read out in court this morning. I note that you were not in court during the reading of the first part of that document, but I am assured by your counsel that he has been through a very similar document with you and that you have been taken to the particulars of the evidence that is relied upon.
4
Principally the summary of opening shows that during the early hours of
29 September of last year, you and your two co-offenders, Messrs Enery and Jenkins, met together and discussed committing an offence, in order to obtain some money. You then drove to the premises of the victim, Brian Gauci, at Sussex Street in Warburton and you broke into his premises, masked and armed with baseball bats. Mr Jenkins looked around for some money to steal and there was an altercation with Mr Gauci in the premises, in circumstances which would have caused him a good deal of fear and anxiety. It resulted in him also having his mobile phone stolen from him, apparently in order to prevent him from phoning the police whilst you were still in the vicinity.
5 Every citizen is entitled to feel safe in their own home. You violated Mr Gauci’s premises and his personal space in a disgraceful manner. I think you would appreciate that burglary involving a home invasion is a very serious offence indeed and ordinarily, would carry a very significant period of imprisonment, particularly for somebody who is not as youthful as your two co-offenders and who has a criminal record, extending to the length of your record for offences of dishonesty and also involving prior convictions for burglary.
6 You are now 29 years of age, you were 28 at the time of the offending. I have been provided, by your counsel, with a copy of a report from Dr Erin Cunningham, a forensic psychologist. He sets out much of your background history and he deals also with the history of your drug and alcohol abuse and your mental and psychological state. It is apparent that you do suffer from certain psychological impairments, personality impairments and he expresses the opinion in his report that your mental impairments are such that there would be a significant risk that a period of imprisonment would aggravate the conditions and that they would make your time in prison significantly harder than for a person who did not suffer from those impairments.
7 Those are circumstances which I take into account in your favour and they undoubtedly bear upon the question of whether it is appropriate in all the circumstances to impose a term of imprisonment.
8
I make it clear that but for the fact that your two co-offenders were youthful offenders and clearly were persons for whom a non-custodial sentence was appropriate, it is likely that you would be sentenced to a terms of imprisonment today. However, having regard to the content of
Dr Cunningham's report and to the fact that you are not to be regarded as the instigator of the offences that took place on 29 September of last year, and it seems to me that your responsibility is no greater than that of your co-offenders, I am persuaded that it would be unfair to impose a term of imprisonment upon you, in circumstances where your two co-offenders were sentenced to non-custodial sentences.
9 I am bound to have regard to the maximum term of imprisonment of 25 years for the offence of aggravated burglary and the maximum term of imprisonment of ten years for the offence of theft, I am bound to express the denunciation of this court for your offending conduct and to punish you appropriately for the offences that you have committed and to impose a sentence that deters you and others from committing offences of this kind. As I have said, ordinarily, that would require me to impose a significant term of imprisonment upon you.
10 However, I think that there are some grounds for thinking that you are capable of rehabilitation. It seems that there is at least a strong possibility that you may commit other offences in the future, but what I have in mind is to follow the recommendations of the assessment that has been performed upon you today and impose conditions attached to a community corrections order, which would be designed to facilitate your rehabilitation and to help you to try and avoid committing further offences in the future by encouraging you to address your alcohol and drug abuse and to deal with other aspects of your psychological and mental impairments that no doubt have contributed to your offending in the past.
11 In those circumstances, I am persuaded that it is appropriate to make a community corrections order in your case. I have in mind to require you to perform unpaid community work for a period of 180 hours, slightly more than that of your co-offenders but having regard to your criminal record, I think that is an appropriate distinction to make, and to require you to perform those hours over a period of two years.
12 There will be other conditions attached to the order, apart from the core conditions and they will require you to submit to assessments and treatment in relation to drug and alcohol issues and to submit to the supervision of the secretary of the Department of Corrections and not to associate with either of your co-offenders, during the period of the order, which as I say, will be a period of two years. You will also be required to submit to mental health assessment and treatment and to undergo such offending behaviour programs as directed by the secretary of the department.
13 Now, all of those programs are designed to help you. Whether they do help you or not, depends very much on how you approach your participation in the programs. You will be required to follow the directions of the manager, who will be responsible for those programs and you should appreciate that if you fail to comply with the requirements of the order, that you will be brought back probably before me, but certainly a judge of this court, and the likelihood is that the community corrections order will be revoked and you will be required to serve a substantial term of imprisonment instead, as well as any other sentence that may arise from any other offending conduct you commit in the meantime.
14 I am sure you are aware of all the downsides of a community corrections order, that it does hang over your head and it operates in a sense like a suspended sentence, during the period of the order, which as I say, will be two years. So you are not out of the woods and you will have to, in addition to avoiding committing any further criminal offences, comply with the terms of the order.
15 Now, are you willing to consent to being placed on a community corrections order?
16 PRISONER: (Indistinct)
17 HIS HONOUR: All right. Well I should read to you what the core conditions are, in addition to the conditions that I have just outlined. You can sit down again for the moment. You must not commit another offence for which you could be imprisoned during the period of the order. You must comply with any obligation or requirement that is made of you by the secretary. You must report to and receive visits from the secretary of the Department of Corrections or his or her delegate. You must report to the Community Correction Centre within two clear working days of the order starting, so that will be I think by four o'clock on Friday. You must let the Community Corrections officer know within two clear working days of you changing an address or your job. You must not leave Victoria without first getting permission from the secretary or his delegate to do so. You must obey all lawful instructions from and directions of the secretary or his delegate or the manager who is looking after your case. Do you understand that?
18 PRISONER: (Indistinct)
19 HIS HONOUR: In addition, you will have to perform 180 hours of unpaid community work over a period of two years, as directed by the regional manager. You must undergo assessment and treatment, including testing for drug abuse and dependency, as directed by the regional manager. You must undergo assessment and treatment, including testing for alcohol abuse or dependency, as directed by the regional manager. You must undergo mental health assessment and treatment, including but not limited to mental health, psychological, neuropsychological and psychiatric, in a hospital or residential facility, as directed by the regional manager. You must undergo programs or courses aimed at addressing factors relating to the offending, as directed by the regional manager. You must not contact or associate with Angus Robert Enery or Brendan Jenkins for a period of two years.
20 They are fairly stringent conditions. Having heard me read those to you, are you willing to consent to be placed on an order on those terms?
21 PRISONER: (Indistinct)
22 HIS HONOUR: All right, well in relation to each of the two offences to which you have pleaded guilty, I convict you and I impose an aggregate order in relation to those offences of a community correction order for a period of two years in the terms that I have just outlined, all right?
23 Now, you will be given the opportunity of reading through that order, with the help of your counsel and signing it, if you are content with it and once the order is made, you will be subject to that order for a period of two years.
24 MR PHILLIPS: As Your Honour pleases.
25 HIS HONOUR: The centre that you will be required to report to, within two clear working days, is the Lilydale Community Correctional Services Centre at Unit 1, 18 Clarke Street, Lilydale.
26 But for your pleas of guilty to these offences, Mr McMaster, I would have sentenced you to a total of three and a half years imprisonment, with a non-parole period of two and a half years. Do you follow?
27 PRISONER: (Indistinct)
28 HIS HONOUR: And certainly, as I have indicated, if there is a breach of the order, you can expect to receive a substantial term of imprisonment in lieu of the orders that I have made. All right?
29 There have also been applications for an order for disposal of property for compensation, in the sum of $553.95 and for you to provide a forensic sample and I have made those orders. I should tell you that in respect of the forensic sample, that you will be required to report to the Lilydale Police Station, as directed within the terms of the order, and there an authorised officer will ask you to provide a scraping from the inside of your mouth. If you fail or refuse to provide such a scaping, that authorised officer may require you to provide a sample of blood and may use reasonable force to obtain that sample of blood. Do you understand?
30 PRISONER: (Indistinct)
31 HIS HONOUR: I am sure you are not going to put the officer to that trouble and cause yourself that embarrassment, so you will comply, no doubt with the requirement that you provide the scraping from the inside of your mouth. All right? Is that all, I think?
32 MS STEVENSON: Yes, Your Honour.
33 HIS HONOUR: Yes, all right. All right, well I make those orders. Do you want to go and assist him to ensure he - - -
34 MR PHILLIPS: If I may, Your Honour, thank you.
35 HIS HONOUR: Mr McMaster, I have countersigned that order, so the order is now in place. You may leave the dock, all right?
36 PRISONER: Yes, Your Honour.
37 HIS HONOUR: Thank you.
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