Director of Public Prosecutions v McNeil

[2017] VCC 367

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-02167

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEBASTIAN MCNEIL

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	24 March 2017
DATE OF SENTENCE:	5 April 2017
CASE MAY BE CITED AS:	DPP v McNeil
MEDIUM NEUTRAL CITATION:	[2017] VCC 367

REASONS FOR SENTENCE
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Subject: Pleaded guilty  to armed robbery, possessing MDMA and cannabis, negligently dealing with proceeds of crime, possessing an unregistered handgun, storing  firearms in an insecure manner, and 3 summary charges –dealing in property suspected of being the proceeds of crime, possessing prohibited weapons, unlawful assault.

Catchwords: Two female co-accused,  Offender 24 years old, ice and GHB user, limited prior criminal history, good prospects for rehabilitation, parity; victim suffered PTSD and facial injuries

Cases Cited:  DPP v Lunedei (co-accused) sentenced by Judge Smallwood 27/9/2016
Sentence:  Total effective sentence 4 years 9 months with non parole period of 2 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P Pickering	OPP
For the Accused	Ms M Harris	Emma Turnbull & Associates

Pages 1 - 8

 

HER HONOUR:

1Sebastian McNeil, you have pleaded guilty to one charge of armed robbery and a number of other charges.  The maximum penalty for armed robbery is 25 years' imprisonment.  You have also pleaded guilty to possessing a drug of dependence, namely, MDMA, and possessing a drug of dependence, namely cannabis.  The maximum penalty for each of those charges is one year’s imprisonment.

2You have also pleaded guilty to negligently dealing in the proceeds of crime, for which the maximum penalty is five years; to two charges of possessing an unregistered handgun, for which the maximum is seven years; and one charge of storing firearms in an insecure manner, for which the penalty is four years.  All these charges are on the indictment.

3In addition, you have pleaded guilty to three summary offences: dealing in property suspected of being the proceeds of crime and possessing prohibited weapons.  The maximum penalty for both of those charges is two years.

4Finally, you have pleaded guilty to unlawful assault, for which the maximum is three months. 

5Ella Noble has also been charged with armed robbery, but she did not appear at the plea hearing. 

6Mikaela Godwin also pleaded guilty to the same charge.  Her plea hearing has been adjourned to a later date.

7Most of the offences were committed on the same day, 1 April 2016.  The background is that Ms Noble was the 20 year old former partner of the complainant, Tim Belbin, against whom she had previously obtained an intervention order.  On 1 April, Ms Noble contacted a co-offender, Matt Lunedei, regarding breaches of the intervention order by Mr Belbin.  They arranged to meet and go to the complainant's house at 855 Plenty Road in South Morang to scare him.  At approximately 6.40pm, Ms Noble met Lunedei at the 7-11 car park on Plenty Road, South Morang.  Lunedei was there with you and Ms Godwin.  Ms Noble made numerous calls to the complainant and arranged to meet him at his home.  The complainant left his house open for Ms Noble to go inside, as he was visiting his sister's house nearby.

8The four of you entered the complainant's house, with you carrying a sawn-off, double-barrel shotgun in your backpack.  You were wearing a mask and Ms Godwin was wearing a bandana over her face.  Neither Ms Noble nor Ms Godwin knew about the gun.  You, Lunedei and Godwin hid in one of the bedrooms, while Ms Noble waited for the complainant in the rear yard.  She called the complainant again by telephone, asking where he was.

9At about 7.15 pm, the complainant arrived home and found Ms Noble in the rear yard.  She finished her cigarette and went inside.  The rest of you then burst out of the bedroom.  Lunedei brandished a sawn-off shotgun and pointed it at the complainant, yelling at him to sit down and to empty his pockets.  This is Charge 1, armed robbery, to which each of the offenders appearing before me at the recent hearing has pleaded guilty.

10The complainant placed his wallet, phone and keys on the table.  You rifled through the complainant's belongings and placed some items in your backpack.  Ms Godwin took a large knife from the kitchen and pointed it at the complainant.

11Lunedei gave the shotgun to you while he rifled through the complainant's cupboards and placed other items in the backpack.  While this was occurring, the complainant asked you not to point the gun at him and not to take his property.  You gave the gun back to Lunedei and punched the complainant to the face with knuckledusters.  That is the summary offence of unlawful assault.  Lunedei then told the complainant to "stay here for ten minutes.  Don't call the police, otherwise you will get it".

12You all left the property, taking with you a wallet containing $305 in cash and cards, a laptop, a camera, keys and a kitchen knife.  The complainant called 000 and police attended.  Later, the complainant searched the internet and was able to identify you and the other offenders.  He went to the Mill Park Police Station and provided the identification details.

13Ms Noble was arrested on 6 April and was interviewed, during which she denied the allegations.  You were arrested on 21 April and the knuckledusters were found in your possession.

14Three weeks later on 11 May, police executed a search warrant at your house and found the following items:

·a Stanley Rogers cutlery set, which relates to the summary offence of dealing in property suspected of being the proceeds of crime;

·a throwing axe, a slingshot, and various knives related to the summary offence of possessing prohibited weapons;

·MDMA in various tablets weighing 6.9 grams with a purity between 6 and 25 per cent - that is Charge 2 on the indictment;

·a double-barrelled, sawn-off shotgun, together with ammunition - that represents Charges 5 and 7 on the indictment;

·a pen pistol which is Charge 6 on the indictment; and

·$4000 in cash, which is Charge 4 on the indictment.

15You were not at home at the time of the search but were arrested a short time later with Ms Godwin and you were found to be carrying a zip lock bag of cannabis which weighed 380.4 grams, and a double-edged knife.  This knife is included in those that are the subject of summary Charge 7.

16The victim has provided a statement in which he describes the facial injuries he suffered from being beaten with the shotgun, followed by post-traumatic stress disorder symptoms.  He lost his job because of these problems and he lost several valuable items, as well as incurring damage to his property.

17I turn now to your own circumstances, Mr McNeil.  You are aged 24 and you were 23 at the time of the offending.  You were remanded in custody on 11 May and released on bail on 13 October 2016.  You were then charged with some further offences and bail was revoked, resulting in you being further remanded from 3 December 2016 where you have remained.

18At the committal hearing on 7 December, you indicated that you would plead guilty to these charges.  Those further charges are important not only because they resulted in your bail being revoked, but also because you committed them when under the influence of alcohol and frustrated upon hearing that you were likely to be spending further time in prison when sentenced for these matters.  Apparently, you broke the mirrors on a number of cars and, when confronted by one of the car owners, you scuffled with him and assaulted him.  It demonstrates a most regrettable lapse in behaviour and judgment at a time when you had been otherwise making good progress.

19Your background is that you completed your secondary education and, on leaving school, you undertook a plumbing apprenticeship with your father, which you almost completed save for one component of the course.  Your father gave evidence that you worked very well at first, but later your work and attitude deteriorated to the point where he could not retain you in the business.  This is because you had succumbed to the use of illicit drugs - cannabis at first and then ice, and later the drug known as GHB.

20(Audio malfunction starts.)

21You understand and have acknowledged that this was very serious offending, and that it warrants a prison sentence.  During the period after your release on bail and your arrest, you had been having counselling treatment with an experienced drug and alcohol counsellor, Mr Dieni.  He gave evidence that you did very well, that you took advice and attended all appointments, produced clean test results, and had a positive attitude.  He is prepared to continue to work with you after your release.

22Part of your positive attitude seems to be connected to your wish to return to the plumbing business run by your father, and eventually to have your own business.  Your father gave evidence of your gradual improvement last year after your release on bail, which gave him confidence in your ability to remain drug free. 

23You have only a limited prior criminal history, but the subsequent matter of breaching bail by criminal damage and assault is not a minor matter.  Despite that, I must take account of the circumstances as I have already described, and give weight to the likelihood that your prospects for rehabilitation appear to be good.  According to your father you have demonstrated the ability to steer clear of the use of ice through self-motivation, helped by the treatment you had.

24Balanced against this is the fact that your involvement in the offending demonstrated extremely poor judgement, a descent into violence and an appalling departure from decent behaviour.  The incident was not your idea, but you went along with a plan to commit burglary, armed with a weapon which you supplied following the suggestion by Mr Lunedei.  Punching the victim using knuckledusters was a further aggravation of the circumstances.

25You have provided the further explanation that the gun wasn’t loaded, which is of course conceded, and there was no ammunition available.  That does not make the use of the gun any less serious.  You had had it in your possession because the use of ice had made you paranoid about people being after you, for money owed to your drug dealer.  You say you had the knife because you were collecting them.  They are thoroughly lame excuses proffered for what you surely must know are serious offences.

26Mr Lunedei was sentenced by His Honour Judge Smallwood of this Court on 27 September 2016.  His Honour described the incident as a very serious example of an aggravated burglary, and, with respect, I agree.  It means that general deterrence is a very important principle to be reflected in the penalty, so that others will be suitably deterred, because of the danger associated with the production of a sawn-off shotgun by more than one offender, subjecting the victim to a terrifying experience.

27(Audio malfunction ends.)

28As for specific deterrence, your rehabilitation from drug use and crime had made some headway as at late last year, and there is no reason why that should not continue when you are released.  You are still a young man.  Technically you are a youthful offender and so your rehabilitation is particularly important.

29You have written a letter to your parents apologising to them for putting them through the ordeal of watching your behaviour deteriorate over quite a long period of time.  They support you wholeheartedly and your father has faith in your ability to turn your life around and become a worthwhile person.  Your mother has also written a letter expressing the same view.  That support is likely to be very important to your rehabilitation and you should be most careful not to abuse it.

30On the question of parity, I take account of the punishment His Honour Judge Smallwood imposed on the co-offender Lunedei, who also pleaded guilty and was sentenced to four and a half years for aggravated burglary, 12 months for burglary and three months for theft.  The total effective sentence was five years with a non-parole period of two and a half years.  He was slightly older than you and had a criminal history connected with the use of amphetamines, with a prior conviction for the use of knuckle dusters.  He was in breach of a Community Correction Order at the time.  He was not charged with armed robbery as you have been, but the charge against him was said to be a serious example of aggravated burglary as I noted a moment ago.

31Just as His Honour applied some leniency to Mr Lunedei, I shall apply in your case the leniency that is warranted by your circumstances - chiefly, your youth and good prospects for rehabilitation.  Would you stand now please, Mr McNeil.

32I sentence you to the following term of imprisonment dealing first with the charges on the indictment:

for Charge 1, armed robbery, four years' imprisonment.

for each of Charges 2 and 3, possessing a drug of dependence, three months.

for each of Charges 4 which is negligently dealing in the proceeds of crime, and Charges 5 and 6, possessing an unregistered handgun, 12 months.

for Charge 7, storing firearms in an insecure manner, six months.

33I now turn to the three related summary charges: 

for summary charge 5, dealing in property suspected of being the proceeds of crime, six months.

for summary charge 7, possessing a tomahawk, slingshot and knives, three months.

for summary charge 18, unlawful assault, one month.

34For the purposes of cumulation, the sentence for Charge 1 will be the base sentence.  I order that there be three months' cumulation for each of the Charges 5 and 6 on the indictment, which are the gun charges.  As the summary charges are related but occurred at different times, I order that one month of each sentence be served in cumulation upon the base sentence.

35This results in a total effective sentence of four years and nine months.  I order that you must serve a minimum period of two years before being eligible for parole.

36You have been in custody for 275 days, not including today, and I declare that to be already served, and I shall cause that to be noted on the court record.

37If you had pleaded not guilty to these charges, I would have sentenced you to five years and six months imprisonment, with a non-parole period of three years.

38The prosecution seeks orders for the forfeiture and disposal of items and for a forensic sample of saliva to be obtained from you, and I understand that you consent to that through your counsel.  I only need to advise you that as far as the forensic sample of saliva is concerned, the police have the power to use reasonable force to obtain that sample, but I trust that will not be necessary.

39Are there any other matters? Ms Harris, first of all?

40MS HARRIS:  No, that's all, Your Honour.

41HER HONOUR:  Thank you.  Mr Pickering?

42MR PICKERING:  Just clarifying the issue Your Honour raised.  Yes, Summary Offence 7 does relate to that throwing knife.  All the knives were included.

43HER HONOUR:  Thank you very much.  Mr McNeil may be taken now.  Thank you, officer.

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