Director of Public Prosecutions v McNamara
[2024] VCC 833
•5 June 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL JURISDICTION
CR 24-00017
CR 24-00018
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEAMUS McNAMARA SEAN McNAMARA |
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JUDGE: | HIS HONOUR JUDGE MURPHY |
WHERE HELD: | Ballarat |
DATE OF HEARING: | 4 June 2024 |
DATE OF SENTENCE: | 5 June 2024 |
CASE MAY BE CITED AS: | DPP v McNamara |
MEDIUM NEUTRAL CITATION: | [2024] VCC 833 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Z. Petric | Office of Public Prosecutions |
For Accused Seamus McNamara | Ms B. Proud | Lake Legal Ballarat |
For Accused Sean McNamara | Mr A. Paull | Adrian Paull Criminal Lawyers |
HIS HONOUR:
Introduction
1Sean McNamara, you have pleaded guilty to one charge of burglary, one charge of theft of firearms, two charges of theft of a motor vehicle, one rolled up charge of theft of motorbikes, tools and alcohol, one charge of acquiring a firearm when you were the subject of a firearm prohibition order, one charge of possession of a firearm while subject to a firearm prohibition order, and one summary charge of committing an indictable offence on bail.
2Seamus McNamara, you have pleaded guilty to one charge of burglary, one charge of theft of firearms, one charge of theft of a motor vehicle, one rolled up charge of theft of motorbikes, tools and alcohol, and one charge of being a prohibited person in possession of a firearm.
3The maximum penalties for each of the offences are 10 years' imprisonment save that the penalty for theft of firearms is 15 years' imprisonment or 1,800 penalty units. The maximum penalty for the summary charge of committing an indictable offence on bail is three months imprisonment.
Circumstances of the offending
4The full circumstances of the offending were set out in the prosecution opening which was read in open court yesterday and which I incorporate by reference.
5In brief outline the two of you are brothers born 14 months apart. At the time of the offending in July 2023 you, Sean, were aged 25 and you, Seamus, were aged 24. You were both living in transient accommodation in the Ballarat area, were addicted to drugs including methylamphetamine, and both of you had been in custody some months prior to the offending, and both of you were on community corrections orders.
6The offending commenced with the theft of a valuable Land Cruiser motor vehicle from a rural property in Cressy in the early hours of 17 July 2023 which you, Sean McNamara, have admitted committing.
7At around 9 pm on that day the two of you were observed in the earlier stolen Land Cruiser at a property in Streatham. At that address the two of you stole another Land Cruiser valued at $100,000, gained access to the residence and a shed and stole two air rifles from the shed, as well as two motorbikes worth $10,000 each, a quantity of power tools and some bottles of beer.
8You, Sean McNamara, were linked to this burglary by DNA recovered from a beer bottle. Phone data later indicated that mobile phones used by the two of you were in that area at the relevant time and then moved towards Bald Hills where you were residing in transient accommodation.
9On the following day, 18 July 2023 you, Sean McNamara, were seen exiting the second Land Cruiser to fill up a jerry can of fuel at a service station at Mitchell Park.
10You were also seen on 26 July arriving at an IGA at Miners Rest in a red Mazda sedan with the first stolen Land Cruiser trailing behind. The same day police executed a search warrant at an address where the two of you were residing at the time in Bald Hills. At that time you, Seamus McNamara, were found in possession of the keys to the first Land Cruiser.
11When police searched a vehicle that you were driving, a Mazda vehicle, Sean McNamara, they located a 0.22 calibre loaded rifle that had been stolen from the Cressy property. They also found in the first Land Cruiser that had been stolen, power tools that had been stolen from the Streatham property. Further power tools were found at the address as well as beer bottles.
12The two air rifles stolen from the Streatham property and the 0.22 calibre rifle in your possession, Sean McNamara, gives rise to the charges of acquiring and possessing a firearm contrary to a firearms prohibition order that you were subject to at the time.
13You, Seamus McNamara, possessed the air rifles stolen from the Streatham property when you were the subject of an intervention order which made you a prohibited person and thus gives rise to Charge 5 being a prohibited person in possession of a firearm.
14The two of you were arrested on 26 July and the allegations were put to you. Each of you have been in custody since that time. You, Sean McNamara, however, have served a six-month sentence for other offending while being in custody.
15The first Land Cruiser was recovered by the police, the second Land Cruiser was later recovered and written off by the insurer. One of the motorbikes was found on the side of the road somewhere and one of the air rifles was located in another town sometime later.
16No victim impact statements have been filed.
Seriousness of the offending
17Save for Charge 7, which is alleged to have occurred on 26 July 2023, this was a spate of offending by each of you over a single day. Commencing with the theft of the Land Cruiser at a rural property in Cressy, the two of you then burgled another rural property in Streatham to steal a further valuable vehicle, tools and alcohol and then it appears, opportunistically the two air rifles.
18As the learned prosecutor submitted, there was some premeditation in this in that you, Sean McNamara, had stolen the vehicle earlier at Cressy to then travel to the Streatham property. In assessing your moral culpability is important to note that you, Sean McNamara, had been released from custody on a community corrections order only two months earlier. You, Seamus McNamara, had been released from custody on a community corrections order some five months earlier. You, Seamus McNamara, were also the subject of an intervention order at the time of the offending.
19You, Sean McNamara, were the subject of a firearms prohibition order. You thus must be taken to have known that you were prohibited from having anything to do with firearms at the time of this offending. Despite this, the two of you then proceeded to steal the two air rifles. Further, you Sean McNamara, were found in possession of a loaded 0.22 calibre rifle on 26 July when you were arrested, which had been stolen from the Cressy property.
20The motivation for the offending appears to have been drug related. Clearly motor vehicles, motorbikes, power tools and indeed firearms are readily saleable to fund a drug habit.
21Rural properties are soft targets for burglaries and thefts and it was clearly on this basis that you chose to burgle the property in Streatham.
22While both Land Cruisers were recovered, one was written off by the insurer. Further, one of the motorbikes was not recovered and one of the air rifles has not been recovered. It appears that the tools were recovered.
23This offending was serious. It was an invasion of the property at Streatham with valuable items stolen included as noted the two air rifles. While the firearms involved here are less lethal than many others, they are still valuable items within the criminal milieu. I accept the submission of your Counsel that your possession of these firearms was not for the purpose of any criminal activity and was opportunistic.
24Notwithstanding this, however, the law regards all unauthorised possession of firearms as serious offending and considerations of general deterrence and protection of the community weigh heavily in sentencing.
Prior convictions
25The prior convictions of both of you are relevant in considering your moral culpability for this offending. In your case, Sean McNamara, you have a significant criminal history albeit over a relatively limited period given your age.
26You were first dealt with in the Ballarat Magistrate's Court on 24 April 2020 when you were aged 22, where on 10 charges of theft of a motor vehicle, eight charges of theft, dishonestly undertaking retention of stolen goods, dealing with property suspected proceeds of crime, non-prohibited possession of a long arm, eight charges of burglary, two charges of failing to answer bail, one charge of possessing cartridge ammunition, one charge of unlicensed driving, and use and possession of cannabis you were sentenced to an effective term of 15 months' imprisonment with 129 days declared served.
27The matter was appealed to this court on 22 October 2020 when you were sentenced to an aggregate term of 237 days' imprisonment and placed on a two-year community corrections order.
28On 14 December 2021 on two charges of burglary, two charges of theft and two charges of criminal damage you were sentenced to three months' imprisonment, with 215 days declared served.
29On 17 December 2021 in this court you were dealt with for breaching the earlier community corrections order. It was cancelled and you were sentenced to an aggregate sentence of 10 months' imprisonment with 255 days declared and placed on another community corrections order for a period of two years.
30You were back before the Magistrate's Court on 9 March 2023 when you were sentenced to an aggregate sentence of one months' imprisonment on two charges of failing to answer bail and three months' imprisonment concurrent for theft of a motor vehicle.
31You were back before this court on 20 April 2023 for contravention of the community corrections order. The order was confirmed and continued until 16 December 2023.
32You were released from custody on 18 May 2023, and as I have noted two months later committed this offending.
33As noted by your counsel in the period since 2020 you have effectively been in and out of prison after committing extensive property related offences.
34Your prior record, and the fact that you have not responded to non-custodial disposition is a significant sentencing consideration here.
35In relation to your prior convictions, Seamus McNamara, they are much less significant than your older brother. You were first before the Magistrate's Court at Ballarat on 28 November 2022 on charges of exceeding PCA, breaching an interlock device and driving in breach of a licence condition. You were placed on a 24 month community corrections order on that date. You were also dealt with for using an unregistered vehicle, recklessly causing injury and criminal damage.
36More significantly on 28 November 2022 you were dealt with for affray, intentionally causing injury and committing an indictable offence whilst on bail. You were sentenced to 14 months' imprisonment, 307 days were declared served and you were placed on a 24 month community corrections order to commence upon release.
37You were released from custody in February 2023 and commenced on that order until you reoffended and were re‑arrested on 26 July 2023. You have been in custody since that time.
38Your prior convictions are of a different character than your offending here and thus carry less salience in terms of your moral culpability for this offending.
39I turn now to matters in mitigation for each of you individually. The personal history of each of you is set out in your respective plea submissions, and also in a neuropsychological report of Mr Martin Jackson in relation to you, Sean McNamara, and Dr Harwich in relation to you, Seamus McNamara.
40You were brought up by your mother and have had little to do with your father. Your parents separated when the two of you were very young and your father was violent and you have had little to do with him. The two of you fled Sunshine where you had been brought up by your mother to come to the Ballarat area when you, Sean McNamara, were aged 10 and you, Seamus, a year younger, after your father arrived at the house armed and with armed associates.
41Both of you continue to have the support of your mother who is a disability support worker and has been in court to support you on the plea.
42Turning to your individual circumstances, Sean McNamara, the most significant matter raised on the plea is that you have had a very disrupted upbringing and education due to a significant intellectual impairment. Before me is a statement of intellectual disability indicating that you have significant sub average general intellectual functioning, and significant deficits in adaptive behaviour.
43You have been on a Disability Support Pension for a number of years. Your education was limited and disrupted and you were expelled from Year seven at a local college after only a few weeks and you have had no other education. You were diagnosed with oppositional defiance disorder and ADHD. You have had a lot of issues at school.
44Your mother was a single mother and your grandparents were significant figures in your life however, your grandmother passed away when you were aged about seven and your grandfather when you were aged 11. This, according to your mother, led to a breakdown from which you have never recovered. Your grandfather was obviously the only significant male figure in your life. You went on a downward spiral, left school and were introduced early into alcohol and drugs. You have never had a full-time job.
45Since you were aged 12 you have experienced periods of homelessness, lived in cars and also returned to live with your mother from time to time.
46You were involved in a motor vehicle accident when you were 14 and there was a suggestion that you may have a possible ABI.
47You were in a relationship with a woman for three years and lived together for some of the time and have two children from that relationship. The relationship broke down and you were the subject of an intervention order against you.
48You are now in a new relationship with a young lady and she has filed a letter in support of you.
49You were assessed by Mr Jackson as having a full‑scale IQ of 61, which places you in the extremely low range, consistent with a mild intellectual disability. He indicates that you may also have an ABI from long-term substance abuse or from the motor accident. You have limited planning and problem-solving skills and he is of the opinion that you continue to manifest symptoms of ADHD.
50The examiner is of the opinion that you have a significant cognitive impairment. You are impulsive. He was not surprised that you found difficulty complying with a community corrections order. He is of the opinion that you will require significant support to remain abstinent from drugs and alcohol. Unless you obtain such support, there is a high probability you will relapse.
51He is of the view that you will find it difficult to hold down any employment because of your significant cognitive and behavioural impairments. You are at significant risk of reoffending if you do not obtain appropriate support in the community to maintain abstinence from drugs and alcohol and find prosocial activities to do.
52Your mother has arranged for a local disability support agency to assist you upon your release.
53Before me was a report from the Department of Justice and Corrections in relation to your performance on an earlier community corrections order. That report indicates that you made some positive progress in complying with that order and attended a number of supervision sessions and had been involved in drug and alcohol counselling.
Sentencing submissions
54Your counsel, in a comprehensive sentencing submission that has been of great support to me, submitted that due to your difficult upbringing, your ADHD and your intellectual disability then considerations of the Bugmy[1] case should lead to a reduction in your moral culpability. While I accept that your upbringing was disrupted by the absence of a father figure, I do not accept that it was of such a blighted nature that considerations of Bugmy are engaged.
[1]Bugmy v R [2013] HCA 37
55However, I accept that you did have a difficult upbringing, as evidenced by your intellectual disability, disrupted schooling, leaving school early, early introduction to drugs and alcohol, having only a Year 3 reading level, being on a Disability Pension since you were aged 15, having impulse control problems, and never having been in the workforce are all matters to take into account. They are considerations that I take into consideration in your favour and they do call for a reduction in your moral culpability and make considerations of general deterrence and denunciation of less salience in sentencing you in accordance with the principles of Muldrock and Verdins.[2]
[2]Muldrock v R [2011] HCA 39, R v Verdins [2007] VSCA 102
Prospects of rehabilitation
56Your ability, Sean McNamara, to rehabilitate into the community is compromised by your intellectual disability and your ADHD, and possibly by an ABI. It is clear from the report of Mr Jackson that you will require significant support in order to avoid relapsing into drug and alcohol abuse within the community and to encourage prosocial activities.
57You will have the assistance of a disability agency arranged by your mother, as evidenced in Exhibit 5, and you may also have the assistance of NDIS if you seek to apply to it.
58Having regard to all those matters, I regard your prospects of rehabilitation as reasonable. However, it will be a long and difficult road.
59Your counsel submitted that in the circumstances a longer than usual period of parole eligibility ought be imposed. I accept that submission.
Other matters in mitigation
60In sentencing both of you I take into account your early pleas of guilty. Each of you have facilitated the course of justice and you are entitled to considerable benefit for that.
61I am also satisfied that both of you are remorseful and that is a matter relevant to your rehabilitation.
62Further, I have taken into account that each of you have been on remand for considerable periods. That is a factor that is relevant because it means that you are eligible for less programs within the prison system, and I do note in your favour that both of you have been involved in working, one of you as a billet, the other in the kitchen, in Fulham prison.
63In sentencing you, Sean McNamara, I also take into account considerations of totality. As noted, you have served a sentence of six months imprisonment since your arrest upon these charges on 26 July. Thus the presentence detention referable to this offending for you is 134 days. Considerations of totality are relevant given that the period that you have been on remand is 334 days. In addition, in your case considerations of the risk of institutionalisation are relevant given that for the past four years it appears you have spent less than a year within the community.
64The sentence that I am about to impose on you will be the longest sentence that has been imposed upon you and you must be seen as very much as being at a fork in the road upon your release, particularly given your significant and continuing intellectual disability.
Sentencing considerations – Seamus McNamara
65You were aged 23 at the time of this offending and are now aged 24. Like your brother you had nothing to do with your father. You are close to your mother and your brother and you have both been in Fulham prison together. You were diagnosed with a learning disability as a young child and attention deficit disorder and ADHD and placed on medication. According to your mother, you had lots of issues at school and were bullied . You were working part-time from the age of 12 and a half and left school a few months into Year 7.
66You then worked on farms in the local area and you have also worked as a plasterer, a mechanic, and also in roof tiling. Your early introduction into the workforce in the presence of older adults led to your early introduction to alcohol and then progressing to drug use including MDMA, cannabis and ice by your mid to late teens.
67You were involved in a relationship and you have a three-year-old son. There was an acrimonious separation from the mother at the time of your imprisonment. Your own mother is currently involved in caring for your son from time to time. Your desire to become re-involved in his life upon your release is a significant factor relevant to your prospects of rehabilitation and I would certainly encourage that.
68Prior to your first term of imprisonment you had a very good work record. When you were released in February 2023 you did obtain some short-term employment but this fell away and it was then that you relapsed into drug use.
69You did engage with the Community Corrections Office for a short period prior to this offending on your community corrections order. You were involved in four drug and alcohol sessions. It was determined that you did not require mental health treatment. You are anxious to return to serving that community corrections order. Ultimately, it will be a matter for the authorities and another judge to determine whether that order will continue given that this offending breaches it.
70Your counsel, Seamus McNamara, relied on a comprehensive psychological report from Dr Harwich. In that report she reviews your drug and alcohol use and finds that you have alcohol use and stimulant use disorders in remission. She notes however that you have no evidence of an entrenched personality disorder but is of the view that you may benefit from neuropsychological testing.
71She attributes your offending to the use of alcohol and drugs for emotional regulation. It was in that situation that you were unable to cope with the breakdown in the relationship with the mother of your child. You lacked social support upon release from custody, did not have the routine offered by employment and this led to your substance use disorder and impaired decision making and a lack of capacity to implement problem-solving problems in the context of a diagnosis of ADHD.
72She regards you as having a moderate risk of reoffending given your limited criminal history. She is of the view that you require significant support to remain abstinent from the use of illegal substances and would benefit from alcohol and drug counselling. She opines that given your level of maturity and impressionable presentation you may be assisted by psychological intervention and referral to a neuropsychologist. She is also of the view that you require assistance to engage in prosocial activities to prevent a relapse into criminogenic company. You also need assistance for accommodation.
73On the plea your counsel tendered a letter from ACSO, an organisation that you have engaged with to provide support upon your release from custody.
74In submissions your counsel relied on your relative youth. I accept that you are a relatively young offender and that is relevant to sentencing including to your prospects of rehabilitation. You have a limited criminal history and as I have noted this offending is materially different from the offending that you were incarcerated for in November 2022.
75Significantly you have no prior convictions relating to firearms.
76Your prospects of rehabilitation are an important consideration. Given your age, the fact that you have a good work record notwithstanding that you left school early, you have the offer of accommodation from your mother, you have had some engagement with the Office of Corrections on your previous community corrections order, and you have the proposed support from a disability services provider and this reintegration provider, ACSO, that I have referred to. On the basis of all those matters and your remorse and plea of guilty, I assess your prospects of rehabilitation as good.
Purposes of Sentencing
77The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
78In sentencing you for each of these offences I must have regard to considerations of totality and proportionality. The overall sentence needs to be a just and appropriate measure of your criminality.
79The offending here as I have indicated occurred on a single day save for Charge 7, and this is relevant to considerations of concurrency and cumulation for the individual counts.
80In sentencing for offences involving firearms, as I have indicated, considerations of general deterrence and community protection are relevant and must be given considerable weight. All offenders who come before courts for illegal possession of firearms of any type can expect serious punishment. In your case, Sean McNamara, these considerations are given somewhat less weight given your intellectual impairment. However, you were on notice that you were a prohibited person because you were the subject of a firearms prohibition notice.
81In relation to the burglary and theft offences, members of the community are entitled to leave their homes, particularly in rural areas, and not return to them to find them burgled and to find their vehicles and other chattels stolen.
82Overall, the offending that both of you engaged in to support your drug use calls for you to be utterly denounced. A signal must be sent to all those minded to engage in similar activity that it will be met by significant punishment.
83At the same time, it is in the community interest that each of you be rehabilitated into the community. This applies particularly in your case, Sean McNamara, given that you have spent considerable periods in custody. You carry a lifelong disability and I have taken that into account in dealing with you.
84In your case, Seamus McNamara, you are being dealt with for the first time for offences of dishonesty and firearms, notwithstanding that you had only recently been released from custody on assault type offences. You are younger than your brother and considerations of your relative youth and your prior good employment record are such that some leniency is called for.
85I have had regard to your relevant role in each of the offending in determining the appropriate sentences for each of the offences that you are both charged with, but the most important consideration that leads to some disparity in the sentences is your prior criminal record, Sean McNamara. Could you please stand. I will deal with you first, Mr Sean McNamara.
Sean McNamara
86On the charge of burglary, which is the base sentence, you are sentenced to 10 months' imprisonment.
87On Charge 2, theft of firearms, 10 months' imprisonment.
88Charge 3, theft of a Land Cruiser, 10 months' imprisonment.
89Charge 4, rolled up charge theft of the motorbikes, tools and alcohol, 10 months' imprisonment.
90Charge 6, theft of the Land Cruiser, the first Cressy Land Cruiser, 10 months' imprisonment.
91Charge 7, acquiring a firearm while subject to a firearms prohibition notice, 9 months' imprisonment.
92Charge 8, possessing a firearm while subject to a firearm prohibition notice, the 0.22 rifle, 9 months' imprisonment.
93Summary charge of committing an indictable offence on bail, 1 month imprisonment.
94The following cumulation applies on the base sentence. Three months on Charge 2, theft of a firearm; 3 months on Charge 3, theft of the Land Cruiser; 3 months on Charge 4, the rolled up charge of theft; 3 months on Charge 6, theft of the Land Cruiser; no other cumulation, making a total effective sentence of 22 months' imprisonment.
95I order that you serve a non-parole period of 12 months' before being eligible for parole.
96I declare that you have served 133 days pre‑sentence detention.
97I declare that pursuant to s6AAA, had you not pleaded guilty I would have imposed a total effective sentence of 30 months' imprisonment with a non-parole period of 20 months' imprisonment.
98On the motor vehicle theft charges, which is Charge 3 including the motorbikes, Charge 4 and Charge 6, all licenses you hold, Mr Sean McNamara, are cancelled and you are disqualified for a period of two years from today.
99I make the disposal and forfeiture orders sought by the prosecution.
100You can be seated.
Seamus McNamara
101Seamus McNamara, you are sentenced as follows.
102On Charge 1, of burglary, you are sentenced to nine months' imprisonment, that is the base sentence.
103On Charge 2, theft of the firearm, you are sentenced to six months' imprisonment.
104On Charge 3, theft of the Land Cruiser at Streatham, six months' imprisonment.
105On Charge 4, the rolled up charge of theft of the motorbikes and the tools and the alcohol, six months' imprisonment.
106On Charge 5, being a prohibited person possess a firearm, you are sentenced to three months' imprisonment.
107I order that two months of the sentences on Charges 2, 3 and 4, which are the thefts of the firearms, the Land Cruiser and the motorbikes, be served cumulatively on the base sentence and on each other, making a total effective sentence of 15 months' imprisonment.
108I order that you serve 9 months' imprisonment before being eligible for parole.
109I declare that you have served 314 days pre‑sentence detention.
110I declare that had you not pleaded guilty I would have imposed a total effective sentence of 21 months' imprisonment with a non-parole period of 14 days.
111On the charges of theft of the Land Cruiser and theft of the motorbikes, all licenses you hold are cancelled and you are disqualified from driving for a period of two years from today.
112I just indicate that both of you, in particular you, Sean McNamara, you seem as though you have never been licensed and you continue to drive vehicles, so if you get caught driving vehicles during this disqualification period or until you get a license, you are going to go to gaol again and again.
113Similarly for you, Seamus, I have indicated I have taken into account your good driving record, but you are now disqualified from driving for a period of two years from today and your licenses are cancelled. So you have got to get yourself another license.
114I will make the forfeiture and disposal orders that have been sought by the prosecution.
115I want to thank all counsel for their assistance in this matter, but the comprehensive submissions from counsel for both prisoners and a comprehensive submission from Mr Petric in response. Adjourn the court sine die.
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