Director of Public Prosecutions v McPhan
[2020] VCC 159
•25 February 2020
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02273
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BEAU FRANCIS McPHAN |
‑‑‑
JUDGE: | Her Honour Judge M. Sexton | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 20 February 2020 | |
DATE OF SENTENCE: | 25 February 2020 | |
CASE MAY BE CITED AS: | DPP v McPhan | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 159 | |
REASONS FOR SENTENCE
‑‑‑
Subject: Criminal Law
Catchwords: Aggravated Burglary – theft
Legislation Cited:
Cases Cited: Boulton [2014] VSCA 342
Sentence: TES: 17 months imprisonment with 2 years Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Moore | OPP |
| For the Offender | Ms J. Willard | Gallant Law |
HER HONOUR:
1 Beau McPhan, you have pleaded guilty to a charge of aggravated burglary, which has a maximum sentence of 25 years' imprisonment; and to a charge of theft, which has a maximum sentence of 10 years' imprisonment.
2 I sentence you on the basis of the prosecution opening[1], an agreed summary which was read out in court. I will briefly outline your offending.
[1] Exhibit A
3 Shortly before 2.45 am on 27 August 2019, you went with three others in a car to a location near an address in Maddingley. After parking the car, you all went onto a property. Each of you had your face covered in some way.
4 In your interview with police, you said that you thought the plan was to steal some mature cannabis plants that the others said were growing in a shed there. You had a machete with you, to cut the plants for removal.
5 I pause there to note that the crime of aggravated burglary does not necessarily involve a person being 'armed with' a weapon. The law only requires that at the time of entry into premises, the offender 'have with them' a weapon. Weapon can mean an item that can be used lawfully as well as for criminal purposes.
6 I accept that you did not have the machete with you to be 'armed with it' as a weapon, but solely for the purpose of cutting and stealing the cannabis plants you had been told about. That still makes your crime an aggravated burglary.
7 I also accept that you did not know until you got to the building that it was not a shed, but a sunroom attached to a house. However, when you did discover you were about to enter a house, you went ahead anyway, and joined the others going into the house after one of your co-offenders prised the door open with a jemmy bar. You entering the house, with a machete, is the subject of charge 1 of aggravated burglary.
8 Once inside, you used your machete to cut off the one cannabis plant you found in the sunroom, and put the plant in a plastic bucket. You also took the opportunity to steal two bags of tools. As a qualified tradesman, you should have realised how important tools are to their owner. Theft of the cannabis plant and the tools is the subject of charge 2.
9 The noise made by your co-offender breaking into the house woke the occupants, and the male occupant came to the door of the sunroom. One of your co-offenders pointed a gun at him and demanded that he open the door. The occupant instead pulled the curtain across the door and called to his partner to phone the police, which she did. I accept that you did not know about the firearm, which had a torch attached to it, until that point.
10 You left the sunroom and walked back down the driveway with the bucket containing the plant, and the bags of tools. Your co-offenders stayed a bit longer and gratuitously smashed some windows and then left.
11 The police responded promptly to the 000 call, and were in the street by the time you got to the end of the driveway. You dropped the bucket and tools, which fortunately meant they were not lost to the owner, and you fled across the paddocks. A police dog was called in and you were located within the hour, hiding in thick scrub. You were taken to hospital by the police for treatment of a puncture wound received from the police dog.
12 Two of your co-offenders were later located and have proceedings pending. The fourth has not been identified or located. You told police that you barely knew your co-offenders, having just met them on the day of the offences, when you were at a friend's house, smoking methylamphetamine (ice). Two of them arrived and talked about stealing cannabis from a property for 'easy money' and foolishly, you joined in the criminal enterprise. You told the police that you did not want to name the others for your own safety.
13 Aggravated burglary is a very serious offence, as can be seen by the maximum sentence of 25 years, which is the second highest penalty after life imprisonment.
14 Your offence is made more serious by the facts that there was a group of you, that you were all in some sort of disguise; that the house was burgled in the early hours of the morning when people are expected to be, and were, at home; and that there was some planning beforehand, so that you were equipped with the machete, others had a gun and a jemmy bar, and all of you had your faces covered.
15 I do not have a separate statement from the victims of the impact on them, but their statements to police about the events[2] make it clear that it was a terrifying experience for them. The woman no longer wants to live there and feels violated and unsafe in her own home. Clearly it was frightening for them to have their home broken into in the early hours of the morning, and to be confronted by a number of people, one of whom had a gun. I take this into account.
[2] Depositions pp21-6; 27-9
16 Against this serious offending, there are a number of matters that must be taken into account in your favour.
17 The first of these is that after you had been treated in hospital, on the same afternoon of your offences you gave a very frank and forthright interview to police, volunteering much information. This is conceded by the prosecution.
18 Next is your plea of guilty. I take into account that you indicated very early in the proceedings your intention to plead guilty, and that your plea has saved the time and expense of a trial, as well as saving the victims from having to give evidence in your trial. As a result, the sentence will be far less than would have been imposed if you had been found guilty after a trial.
19 Further, I treat your forthright interview and your early plea of guilty as signs of genuine remorse for your criminal behaviour, and that you have taken responsibility for it.
20 Next, you have no criminal record, and so are to be sentenced as a person of previous good character. You have no charges pending.
21 To understand how a young man of good character became involved in such serious crimes, it is necessary to consider your personal circumstances and background, which I take into account.
22 You are now aged 24 years and were aged 23 at the time of the offending. You had a difficult and traumatic childhood being a witness to, and the victim of, physical and psychological abuse by your father who was a violent alcoholic. After your mother bravely left with you and your sisters when you were aged 7, your father sometimes turned up to the new house, and police were called on occasions. You and your two younger sisters slept in your mother's room until you were aged 12, due to the terror that he had instilled in you. When you were 12, a five year Intervention Order was granted to you, your mother and your sisters. I received a letter to the court from your mother[3] confirming that the abuse continued even after the Intervention Order was in place, although less frequently, and your father only left the family alone when your mother re-partnered.
[3] Part of Exhibit 2
23 Despite this difficult childhood, you were successful in obtaining an apprenticeship at 15, and qualified as a carpenter. You showed an exceptional work ethic, leaving home in Ballarat at 4.30am to work on large construction jobs in Melbourne, not returning home until 7pm, 5-6 days a week. You were paid very well, but did not use your money well, instead developing a gambling habit. This was described by your counsel as a form of escapism.
24 Unfortunately you were made redundant at the age of 21. Through your then girlfriend’s mother, you obtained work in Ballarat working with children with disabilities for about six months. You have been unemployed since then.
25 Extensive research has shown that child abuse, including physical and psychological, may lead to a wide range of adverse consequences. The psychological effects of child abuse may lead to alcohol and other drug abuse problems in adolescence, and studies have shown that experiences of physical abuse increased the likelihood of adolescents using alcohol, marijuana and other drugs[4].
[4] Effects of child abuse and neglect for children and adolescents, Child Family Community Australia Resource Sheet, January 2014, Australian Institute of Family Studies (aifs.gov.au)
26 You did begin using drugs in your teens, which no doubt also chewed up any money you earned that was not gambled away. At first, this cannabis use was for 'fun', but your use of cannabis increased. After you were made redundant, you began using methylamphetamine, which is such a dangerous drug that it quickly became an addiction. It may be that that was another form of escapism.
27 Despite this drug use, over a period of about three years from 2016, you became your grandfather's carer, living with him, and doing whatever you could to meet his needs as he was ailing. Your mother describes in her letter[5] how you cared for her father, and what a sensitive, kind young man you grew to be, despite your childhood abuse. Your grandfather passed away in March 2019, some months before the offending, and this affected you such that your methylamphetamine use escalated to daily use of about a gram. Around the same time, because of your drug addiction, your relationship of eight years broke down.
[5] Part of Exhibit 2
28 At the time of the offending, you had just had your Newstart allowance cut off for the second time, probably because your addiction was preventing you from meeting your obligations to receive the benefit, and this was the position you were in, high on ice at a so-called friend's house, desperate for money, when you met up with the people who became your co-offenders later that night.
29 And so you went from being a young man with no criminal record, to being a drug addict committing a serious aggravated burglary. As your mother said in her letter[6], this was a shock to all who knew you and totally out of character.
[6] Ibid
30 You were described by your counsel as a youthful offender and no issue was taken by the prosecution with this description, although the law defines 'young offender' as 21 years or less. There is no legal definition of 'youthful offender', but I note that the Judicial College of Victoria Sentencing Manual at paragraph 11.7.5 refers to a number of cases, two of them involving 'youthful offenders' aged 23 years old, which you were at the time of the offending. You are young enough at 24 to learn from your serious mistakes, by which I mean taking drugs, and committing crimes, and so I do act on the basis that your rehabilitation is a significant purpose of the sentence I will impose today.
31 There are a number of factors that are important in my assessment of your prospects for rehabilitation. You have previously shown your ability to work hard, and you have qualifications, and your stepfather has provided a letter to the court[7] indicating that you have employment available with him on your release, because of the success of his property maintenance business since he began 12 months ago. As well as family support and a good employment outlook, you are supported by family friends who have known you for years, and who by their references have shown their wish to encourage you in your ongoing rehabilitation[8]. Apparently, your former girlfriend has been visiting you in gaol and providing her support, which may lead to a reconciliation. All of this support is vital to your rehabilitation.
[7] Part of Exhibit 2
[8] Ibid
32 Further, you have been on remand since your arrest on 27 August 2019, which I accept must be difficult, as a person who has never been in trouble with the police before. I accept this experience has had the effect of making you not want to return to gaol after your release, and has also given you the time to reflect on what your drug addiction has brought you to.
33 Because of your age, previous excellent work history, expressions of remorse, lack of criminal record, and the beginnings of insight into your drug addiction, I find that your prospects of rehabilitation are good, and that you are unlikely to reoffend, but this preferred outcome will only be achieved by you if you work hard at overcoming your addiction. If you do not, you will be back before a court in the future.
34 The prosecutor submitted that the only appropriate sentence for your offending is one of a term of imprisonment with a non-parole period. Your counsel submitted that despite the seriousness of the offending[9], the matters in your favour should lead me to consider as appropriate a combination of a prison sentence of no more than a further 12 months and a community correction order on your release.
[9]Boulton [2014] VSCA 342
35 I have decided that I do have an alternative to a term of imprisonment and a non-parole period.
36 I will announce the formal orders in a moment, but the outcome is that you will be sentenced to a total of 17 months' imprisonment, and if you agree, I will release you on a community correction order for two years following the term of imprisonment, with the conditions I will outline in a moment.
37 The period you have already spent in custody will be taken into account so that while the total effective sentence for both charges will be 17 months' imprisonment, you will be released in just under 12 months' time to undertake a community correction order with conditions attached to that. I am of the view that you must serve this further time because the offending is too serious for a sentence of a shorter duration.
38 I consider that the combination of the prison sentence and the community correction order meets the purposes for which sentencing is to be imposed in this case, including both punishment and rehabilitation. My sentence of you must also seek to deter other young men from embarking on serious crimes, and to a lesser extent, deter you from reoffending, which I accept has probably been largely achieved by the period of time you have already spent in prison.
39 Mr McPhan, because you must agree before I can release you on a community correction order, I need to tell you what the conditions are. The core conditions attached to every community correction order are that you must report to and receive visits from Corrections Victoria; you must notify Corrections Victoria of any change of address or employment; you must not leave Victoria without permission of Corrections Victoria; and you must comply with any direction given by Corrections Victoria to ensure compliance with the order.
40 I will also order that you comply with other conditions during that two years: that you must be under supervision by Corrections Victoria; that you be assessed and if required, receive treatment for mental health issues and drug abuse and dependency; and that you be assessed for suitability for other programs to reduce reoffending. I have included the mental health condition because you have not had any counselling for the abuse you suffered as a child, nor for your grief at the loss of your grandfather. I have included the program condition because of your previous gambling problem. Corrections Victoria will assess you and decide what programs and treatment are needed.
41 So, Mr McPhan, stand up please. Do you agree to being released on a community correction order after your imprisonment with those conditions attached, for Charge 1?
42 OFFENDER: Yes, Your Honour.
43 HER HONOUR: If you do not complete any condition of the community correction order, you will be brought back before me to be re-sentenced on Charge 1 of aggravated burglary and also be dealt with for not doing what you are ordered to do under the community correction order. So do you understand what will happen if you do not complete any condition of this order?
44 OFFENDER: Yes.
45 HER HONOUR: And I can tell you that the likelihood is more gaol time. I should also tell you that the community correction order can be changed or in fact removed by the court if your circumstances change. To do that, you should get legal advice.
46 So you will now be asked by my associate to sign a document to show that you agree to abide by the conditions of the community correction order. And Ms Willard, you can go with my associate to answer any questions Mr McPhan has and assist him with that. I'll just check this. Yes, you can take a seat for the moment, Mr McPhan. Thank you. Yes, so I have signed that order, and I will now make the formal orders. If you could stand up again please.
47 You are convicted and sentenced as follows:
48 On Charge 1 - aggravated burglary - 17 months' imprisonment, on completion of which you will be released on a community correction order for two years on the conditions I have outlined.
49 On Charge 2 - theft - 14 days' imprisonment.
50 The sentence on Charge 1 is the base sentence. The whole of the sentence on Charge 2 is to be served concurrently with the base sentence.
51 I declare that you have served 181 days in pre-sentence detention not including today and that these are to be deducted administratively from the sentences I have imposed. Could I just check that that is the correct - yes, thank you.
52 MS WILLARD: That's right, Your Honour. Thank you.
53 HER HONOUR: Thank you.
54 Lastly, Mr McPhan, if you had not pleaded guilty, but had been found guilty after a trial, the sentence I would have imposed on both charges is a total of 5 years' imprisonment with a minimum of 2 years. Yes, there are no other orders required?
55 MR MOORE: No, Your Honour.
56 MS WILLARD: No.
57 HER HONOUR: Yes, thank you. Ms Willard, you'll be going to see Mr McPhan, will you?
58 MS WILLARD: Yes, I will.
59 HER HONOUR: Yes, thank you. Yes, well, Mr McPhan can be removed. Yes, thank you, counsel, and I will stand down until 11 o'clock for the trial.
60 MR MOORE: Thank you, Your Honour.
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