Director of Public Prosecutions v McNally

[2015] VCC 324

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01197

DIRECTOR OF PUBLIC PROSECUTIONS

v

CAMERON McNALLY

---

JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2015
DATE OF SENTENCE:	19 March 2015
CASE MAY BE CITED AS:	DPP v McNally
MEDIUM NEUTRAL CITATION:	[2015] VCC 324

REASONS FOR SENTENCE
---

Subject:Plea – sentencing

Catchwords:             Causing injury intentionally

Legislation Cited:     Sentencing Act 1991

Cases Cited:            Boulton, Clements and Fitzgerald v The Queen [2014] VSCA 342
  McAleer v The Queen [2015] VSCA 4,
  Sherritt v The Queen [2015] VSCA 1

Sentence:                  2 years' imprisonment, non-parole period 15 months

---

APPEARANCES:	Counsel	Solicitors
For the DPP at hearing For the DPP at sentence	Mr M. Gibson Ms E. Millar	Office of Public Prosecutions
For the Offender	Mr M. McGrath	Matthew White & Associates

HIS HONOUR: 

1Cameron McNally, you have pleaded guilty to one charge of causing injury intentionally.  This offence carries a maximum penalty of ten years' imprisonment.

2You were born on 26 September 1989 and you are now aged 25.  You were aged 24 when this offending occurred.

3You have an extensive criminal record for one so young, about which I will go into more detail later.

4The background to the offending may be briefly stated as follows. 

5The victim is this matter is Mr Paul Satatas, and he was aged 24 at the time of the offending.  At the time of the offending you and Mr Satatas had known each other for a number of years.  Adam Friedman is a mutual friend of you both.

6Mr Satatas was previously in a relationship with a girl named Jessica Gillett.  They have a two-year-old son together.  In recent times their relationship has broken down and there exists a degree of animosity between Mr Satatas and Ms Gillett and her family.  You, Mr McNally, are a friend of Ms Gillett and her family.

7The circumstances of the offending for which you are now to be sentenced are as follows. 

8Since early 2014 you have attempted to meet up with Mr Satatas to sort out certain differences.  As a result, Mr Satatas and Mr Friedman sent a number of text messages to you referable to such a meeting.

9On Wednesday 5 February 2014, Mr Friedman attended at Mr Satatas' house.  He was there at your request to broker some sort of meeting between you and Mr Satatas, that is, to facilitate an opportunity for you to speak with Mr Satatas about issues you had with Mr Satatas. 

10It was conveyed to Mr Satatas that you wanted to meet at a park, Namatjira Park, off Springs Road, Clayton South.  Mr Satatas agreed to meet you but in the middle of the park. 

11At about 9 pm on Wednesday 5 February 2014, Mr Satatas and Mr Friedman attended at the centre of Namatjira Park, as arranged, for the purposes of meeting up with you.  Mr Friedman was in possession of a club lock.  Mr Satatas was in possession of a rounders bat.

12You arrived and approached Mr Satatas and Mr Friedman on the oval.  You produced a machete.  Once Mr Satatas saw the machete, he grabbed a metal bar from the club lock and threw it at you as a form of deterrence.  Mr Satatas then took flight and was chased by you.  He tripped and fell to the ground.  When you caught up to Mr Satatas, you used the machete to strike him three times: once to the left leg near the thigh, another to the left shin and foot, and another being an attempt to strike Mr Satatas' head which he blocked with his right hand causing a slicing injury to his right hand. 

13All strikes with the machete were inflicted whilst Mr Satatas was lying on the ground.

14

Immediately after this, Mr Friedman came to the aide of Mr Satatas, pushing you away from him and jumping on you.  This enabled Mr Satatas to put you in a head lock and for he and Mr Friedman to disarm you of the machete. 

Mr Satatas then ran off.

15A short time later, Mr Satatas' housemate drove him to the Monash Medical Centre where he was admitted at 10.45 pm.  After examination and consultation, Mr Satatas was transferred to Dandenong Hospital where corrective surgery was performed on his injuries. 

16Mr Satatas' injuries, according to the Monash Medical Centre's patient records, are as follows. 

Multiple lacerations, heavily contaminated with soil and grass. Specifically as to the injuries:

Left leg/calf:   10 cm deep laceration to the fascia of the left leg lateral. (also described as) Partially lacerated muscle behind calf (peroneus longus); soft tissue defect along the posterolateral calf.

Left Thigh:5 cm deep laceration to level of periosteum (a point of attachment for certain muscles).

Left Foot:comminuted fracture of the 5th metatarsal (the bones comprising the foot); at least 4 fracture fragments, two large and two small; the fracture involves the proximal shaft;

Right Hand:   10 cm deep laceration with underlying compound fracture of 5th metacarpal; (also described as) comminuted mid-shaft fracture of 5th metacarpal (bone of the hand); deep laceration over base of thumb

17There was surgery which involved the following:

·Debridement of soil and grass from all open wounds

·Left lower limb:  muscle and skin reconnected and then sutured

·Right hand:  plates and screws inserted on either side of fracture; sutured and splinted.

18On the next day, Thursday 6 February 2014, police unconnected with this case spoke with you in the Cheltenham area.  As a result of three outstanding warrants on other matters, you were arrested and conveyed to the Moorabbin Police Station. 

19A record of interview was conducted in relation to this matter at Moorabbin Police Station on 6 February 2014.  When asked what you could say about an assault at Namatjira Park the previous evening, you said "Nothing."  When asked about your movements the previous evening, you said "Not much, don't remember."  When asked if the names Paul Satatas or Adam Friedman meant anything to you said, "No”, you did not know the names.  You said that you did not recall any meeting with Mr Satatas or Mr Friedman the previous evening.  You had nothing to say about any allegation of assaulting Mr Satatas the previous evening.  You denied knowledge of any machete.

20I now turn to your personal circumstances. 

21As I noted earlier, you are 25 years now and you were 24 at the time of the offending. 

22You had a dysfunctional upbringing as a child and young person.  Your parents separated when you were young and you and your sister lived with your mother.  She was an alcoholic and violent.  At the age of eight you commenced living with your father.  You exhibited behavioural difficulties during your youth and were expelled from a number of schools.  You can recall being prescribed medication from a young age regarding your behavior and you attended a mental health professional around the age of eight.  You also attended a “Social Adjustment Centre” at Doncaster when you were in primary school.

23Your secondary school education ended when you were expelled from Albert Park Secondary School at the end of 2005.  You would have just turned 16.  Despite being expelled you completed Year 10 maths, later by correspondence. 

24Whilst still attending school, at 13 you commenced working as a stable hand.  This required you to rise early and ride your bike to the Caulfield racetrack.  You would prepare the horses and clean the stables.  During this time you commenced drinking alcohol. 

25Thereafter you have worked in various occupations, including as a kitchen-hand and waiter, in construction, as a furniture removalist and as a garbage collector.

26Prior to 2012 you had been drinking heavily, however since mid-2013 you have been frequently using amphetamine.  In December 2013, whilst affected by amphetamine, you committed a burglary at JB Hi-Fi where you fell seven metres through the roof and sustained injuries requiring hospitalization.  Up until your amphetamine use you had been in regular employment.  Your instructions to your counsel are that you had been addicted to ice for some time prior to committing the current offence.

27You have a criminal record, which starts with an appearance at the Melbourne Children's Court in July 2006 when you were 16 years of age, where you were released on a good behaviour bond for five months for intentionally damaging property.

28In November 2007 you were again placed on a good behaviour bond, this time for six months for assaulting police.

29In June 2008, in your last appearance at the Children's Court, you were fined for entering a private place without authority.

30In November 2008, at the age of 19, you appeared at the Melbourne Magistrates' Court for intentionally causing injury - the same charge as that for which you are now being sentenced - and also for failing to answer bail.  You were then placed on a 12-month Community-based Order, which I note that you subsequently breached.

31In June 2010 at the Melbourne County Court, this court, at the age of 20 you received your first prison term of 21 months, with a non-parole period of nine months, for attempted armed robbery, burglary, theft and resisting police.

32In July 2010 you were given a one-month term of imprisonment, wholly suspended, for breaching your Community-based Order.

33You have further offended on five separate occasions in 2013, and in a consolidated plea heard at the Melbourne Magistrates' Court on 11 June 2014 you were sentenced to six months' imprisonment for that offending, which comprised burglary, fail to answer bail, drive whilst suspended, criminal damage and driving at a dangerous speed.  It was further directed that 125 days be reckoned as pre-sentence detention in respect of those offences dating from your arrest on 6 February 2014 on warrants. 

34From 8 August 2014 onwards you have been in custody solely on the current matter, a total of 223 days, not including today.  You have, however, been in custody overall from 6 February 2014 to the present date, a total of 406 days, not including today.

35You were also on bail at the time of the commission of the current offence, bail with special conditions having been entered at Prahran on 19 December 2013 for a burglary offence committed at Malvern in 2013.

36Your attack on Mr Satatas amounts to a serious example of this offence.  Whilst it is conceded that it was the victim who was active in seeking the meeting and, together with his associate, was also armed, obviously anticipating the possibility of violence, your acts in attending with a machete, pursuing and then striking at the victim as he lay on the ground were savage and brutal.  It involved bone fractures requiring plates and screws within surgery and multiple lacerations of between 5 and 10 centimetres in depth.

37Whilst not falling within the current legal definition of serious injury, the injury suffered is to be regarded as significant.  The fact that you were on bail at the time, which required a condition to be of good behavior, is an aggravating feature.

38In mitigation I accept the matters urged on your behalf by your counsel including:

·    your plea of guilty, noting that it was after committal but prior to trial;

·    that you have already served a significant time in custody since 6 February 2014, amounting to 223 days in pre-sentence detention on this charge, but 406 days when taking into account your arrest and sentence on other charges from 6 February 2014;

·    your dysfunctional early history reflected in behavioural difficulties commenced at an early age, your mother's alcoholism, your own descent into alcohol and recent amphetamine use - whilst there is little objective evidence of the depth and extent of your drug use, I accept that it is likely that you have underlying personality issues which are being manifest by your substance abuse and offending conduct; 

·    the commendable approach you have taken to attend rehabilitative programs whilst in custody and the evidence of lack of illicit substance use over that time;

·    the continuing support you have from your father and sister and friend Dale;

·    your youthfulness at the age of offending and relative youthfulness now;

·    your attempts to connect with community health services whilst in custody; and

·    your ability to seek, obtain and sustain employment when the opportunity has arisen.

39Your counsel has submitted that in all the circumstances the purpose or purposes for which a sentence is imposed can be achieved by a sentence that does not involve your further confinement in prison and which can be achieved by a suitably directed Community Correction Order. 

40The prosecution submits that nothing less than a sentence of imprisonment with an appropriate non-parole period is open.

41Ordinarily an offender in these circumstances and with your background should expect a sentence of an immediate term of imprisonment and for a significant period.  I note that you have already served a period of over seven months in remand custody for this offending and that period can be taken into consideration as time served on any sentence imposed. 

42A further period spent in custody whilst awaiting hearing and serving the sentence imposed by the Magistrates' Court in June 2014 can also be taken into account in reduction, in a broad way, by having regard to time spent in custody and what the law refers to as “lost time”.  This time can be taken into account within a sentence of imprisonment, either standing alone or in combination with a Community Correction Order. 

43You have been assessed as suitable for such an order. 

44In his submissions on sentence, your counsel gave specific emphasis to the recent decision of The Court of Appeal in Boulton & Ors v R[1].  I have given close attention to the principles expressed in that decision and to further expressions of the Court of Appeal in the subsequent decisions of McAleer[2] and Sherritt[3]. 

[1] Boulton, Clements and Fitzgerald v The Queen [2014] VSCA 342

[2] McAleer v The Queen [2015] VSCA 4

[3] Sherritt v The Queen [2015] VSCA 1

45In Sherritt, the court said as follows:

"The court in Boulton emphasised that, if the CCO is to serve the purpose for which Parliament quite clearly envisaged it, sentencing courts (including this court) need to rethink the conventional wisdom about whether prison is really the only option.  The court was at pains to spell out the grave disadvantages of imprisonment, both for the offender and for the community, and the unique advantages of a CCO in enabling real punishment to be imposed at the same time as advancing the offender's rehabilitation in a way no prison term ever can.

46In Boulton, the court said as follows:

“The availability of the CCO dramatically changes the sentencing landscape.  The sentencing court can now choose a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to an option (imprisonment) which is skewed towards retribution and deterrence.

The CCO option offers the court something which no term of imprisonment can offer, namely the ability to impose a sentence which demands of the offender that he/she take personal responsibility for self-management and self-control and (depending on the conditions) that he/she pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or avoid undesirable persons and places.  The CCO also enables the offender to maintain the continuity of personal and family relationships, and to benefit from the support they provide.

In short, the CCO offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who are dependent on him/her.  On this analysis, if defence counsel submits that a CCO would be appropriate, it is no answer for the prosecutor (or a judge) to say, 'How could a CCO be appropriate given that an offence of this seriousness has always received imprisonment?'  As we have endeavoured to explain, that question should mark the beginning, not the end, of the court's consideration.

The views we have expressed are reinforced by the recent insertion into the Sentencing Act of s.5(4C). This provision came into force on 29 September 2014, after the completion of argument in the present proceeding. The new subsection provides as follows:

A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in ss.48F, 48G, 48H, 48I and 48J are attached.

What is most powerful about s.5(4C) is that it prohibits the imposition of a sentence of imprisonment unless the sentencing court has paid specific and careful attention to:

(a)      the purposes for which the sentence is to be imposed on the offender; and

(b)      whether those purposes can be achieved by a CCO to which one or more of the specified (onerous) conditions is attached.

The process of deliberation which this provision requires should assist in the reconceptualisation of sentencing options to which we have referred.  In particular, that process will throw into much sharper focus the distinction we have sought to draw between the narrow punitive purpose (and effect) of imprisonment, on the one hand, and the multi-purpose character of the CCO.  The sentencing court should ask itself a question along the following lines:

Given that a CCO could be imposed for a period of years, with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence, or the offender, which requires the conclusion that imprisonment, with all of its disadvantages, is the only option?"

47In my view, the objective seriousness of this offending in particular, together with your extensive criminal record, the nature of the offences for which you have been previously convicted - including attempted armed robbery in 2010 and intentionally cause injury in 2008 - and the breach of your previous Community-based Order, combine to such an extent to reduce the mitigation which otherwise would attach to your relative youthfulness and to rehabilitation. 

48Principles of denunciation, punishment and specific and general deterrence demand emphasis in the purposes for which the sentence is to be imposed and leads me to the conclusion that imprisonment is the only option.

49

In determining the sentence to be imposed, weight must still obviously apply to the mitigating circumstances to which I have already referred.  I note that when you were last before this court in 2010, when sentencing you His Honour Judge Gullaci was guarded about your prospects of rehabilitation.

I have the same reservations.  You are only 25 and there remains a risk of you becoming institutionalised.  I have also taken that into account.

50Mr McNally, could you please now stand.

51On Charge 1 of causing injury intentionally, you are convicted and sentenced to two years' imprisonment. 

52I direct that you serve a period of 15 months before being eligible for parole. 

53Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 223 days, not including today, be reckoned as time already served under this sentence, and I direct the fact of this declaration and its details be noted in the records of the court.

54Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty the sentence I would otherwise have imposed is three years' imprisonment with a minimum period of two years to serve before being eligible for parole. 

55

At the plea hearing the prosecution sought a disposal order for the items seized by the police.  You have consented to the making of this order, which

I have done today. 

56MR McGRATH:  Your Honour, just one thing about the disposal order, does that include the mobile phone?

57HIS HONOUR:  It does not include the mobile phone.

58MR McGRATH:  Yes.

59

HIS HONOUR:  Can you show me the order, please?  Thank you,

Mr McGrath.

60You can be seated, Mr McNally.  What we will do is just - it is listed in the schedule.

61MR McGRATH:  Yes, Your Honour.

62HIS HONOUR:  Thank you for reminding me about that.  You recall there was some discussion about that during the course of the plea.

63MR McGRATH:  Yes. 

64HIS HONOUR:  My reasons for that are that it is simply not sufficiently relevant to the circumstances of the offending to be appropriate to a disposal order. 

65MS MILLAR:  Yes, Your Honour.

66MR McGRATH:  Your Honour, may I briefly approach Mr McNally?

67HIS HONOUR:  Yes, you may.  Is there anything else by either counsel?

68MS MILLAR:  No, Your Honour.

69MR McGRATH:  No, Your Honour.

‑ ‑ ‑