Director of Public Prosecutions v McPherson
[2022] VCC 1061
•1 July 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-21-01654
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LILLY McPHERSON |
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| JUDGE: | HER HONOUR JUDGE CARLIN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 June 2022 |
| DATE OF SENTENCE: | 1 July 2022 |
| CASE MAY BE CITED AS: | DPP v McPherson |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 1061 |
REASONS FOR SENTENCE
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Subject: Criminal
Catchwords: Plea of guilty; common law assault; false imprisonment.
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited: Worboyes v The Queen [2021] VSCA 169.
Sentence: Without conviction, sentenced to an 18-month Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Keks (Plea) Mr J. Mighell (Sentence) | Office of Public Prosecutions |
| For the Accused | Ms J. Clark | Rebecca Boreham Barristers & Solicitors |
HER HONOUR:
Introduction[1]
[1] Summary based on the agreed facts set out in the Summary of Prosecution Opening and marked as Exhibit A.
1Lilly McPherson, on 30 June 2022, you pleaded guilty before me to: two charges of common law assault and one charge of false imprisonment.
2Although there were some matters you disputed, your counsel accepted that I should sentence you on the basis of the facts set out in the summary of prosecution opening, and I do so.
3In short, in January 2020 you were 18 and living in Swan Hill with your boyfriend Trevor Firebrace, who was also 18, and the victim, Jordana Munro-Glare, who was 17. At that time you had been living with your boyfriend for over two years and with Jordana for about two years. According to your counsel, you and Trevor Firebrace took Jordana in to live with the two of you on Christmas Day 2018 after she ran away from her family home.
4Your offending came about because rightly or wrongly you suspected that Trevor Firebrace and Jordana were having a relationship behind your back. On 16 January 2020, you and Jordana argued over a comment that
Trevor Firebrace had made on an Instagram photograph, posted by Jordana. After she had gone to bed you went into her room and started yelling at her. You grabbed her by the hair and threw her into a wall causing her head to hit the wall. Trevor Firebrace came into the room and yelled at you, presumably to get you to stop this outrageous behaviour. You were undeterred. As Jordana tried to leave the house you tried to stop her and pushed her into the front gate. Her shin hit the gate and was bruised. Your assault on that day is Charge 1. Jordana then left the house and stayed with her brother.5Your anger continued unabated and the next day you took Jordana's belongings and threw them onto the front lawn of her brother's place. You accused Jordana of breaking you and Trevor Firebrace up, and told her you were going to stay with your family in New South Wales and that she was not allowed to live with Trevor Firebrace.
6Over the next few days whilst you were away, you and Jordana were in communication via Snapchat but did not discuss the events of the 16th.
Trevor Firebrace was also in communication with Jordana, and on 20 January asked her by text message if she was going to move back in. He assured her that the two of you wanted her to move back in. After that you also sent her a Snapchat message which, whilst not specifically inviting her back, would have conveyed the impression that it was okay with you if she did.7On 24 January you returned to your house with your mother, Loretta Tomkins and your two younger sisters. Jordana was there and let you in. It is obvious that you were immediately suspicious, because you unzipped Jordana's top which revealed that she had no bra on. You accused her of sleeping with
Trevor Firebrace, called her a slut, and punched her in the mouth, causing her head to hit the wall. This assault is Charge 2.8The next events are Charge 3. You and your mother then told Jordana to get in your car because you were going to take her to New South Wales. She sat on the ground crying, saying she did not want to go there and promising to live elsewhere. The two of you told her she could not live anywhere near Trevor Firebrace and your mother grabbed her whilst you told her that if she did not get in the car you would tie her up. Jordana asked you if you would at least take her to her brother's place first, so she could get clothes and you told her that you would. She got into the back seat with your two sisters, whilst you sat in the front passenger seat and your mother drove.
9Very soon after Jordana got in it became obvious that you had no intention of taking her to her brother's place at all. Her instructions as to how to get there were ignored and you told her that you were taking her straight to New South Wales. Realising her predicament, Jordana determined to escape. When the car was stopped at traffic lights, she opened the door to get out. Both you and your mother lent over the front seat to try and stop her. You managed to grab the sleeve of her top which came off as she got out, making a red mark on her neck in the process, and leaving her naked from the waist up. Jordana ran from the car trying to cover herself up as she went. She was rescued by two men, one of whom gave her his shirt. Even in the presence of the two men you were not deterred. You chased after Jordana yelling at her, and one man yelled at you to leave her alone. Your mother also approached and tried to get Jordana back into the car, but again was told to leave by the two men. What happened in the street was captured on CCTV and police attended shortly after.
10You and your mother then drove back to New South Wales. You were arrested and interviewed on 9 February 2020 after you returned to Swan Hill. You denied assaulting Jordana on either the 16 January 2020, or 24 January. You also denied taking her away against her will and said that you were giving her a place to stay. You told the police that you were taking her to her brother's house, before you were taking her anywhere else. So, essentially, you denied the offences.
11It now falls to me to sentence you for your conduct. Both your counsel,
Ms Clark, and the prosecutor, Mr Keks, submitted that a Community Corrections Order was appropriate and within range. The point of difference between them was whether it should be with or without conviction. As I indicated yesterday, I agree that a Community Corrections Order is an appropriate disposition. Your mother, who was 39 at the time of the offending, pleaded guilty to a single charge of false imprisonment before another judge on 5 April 2020, and was sentenced to an adjourned undertaking with conditions and without conviction. As with you, the prosecution in her case argued for a conviction but Her Honour sought fit not to impose one.12Ms Clark accepted that your overall offending is more serious than your mother's and did not seek the same sentence. Nevertheless, your mother's sentence is still relevant and I must ensure that the sentence I impose on you does not give rise to you having a justifiable sense of grievance.
13In arriving at an appropriate sentence, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[2] Some tend towards leniency, and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.
[2] Sentencing Act 1991 (Vic) s 5(2).
Your personal circumstances
14Turning to your personal circumstances which were outlined in defence submissions.
15
You are a 21-year-old Aboriginal woman. You were born on the
22 February 2001 to parents Loretta Tomkins and Jodi McPherson, who are still together. Your home life was stable. Your mother is a support teacher and your father is a labourer. You are the eldest of three children; your younger sisters are now aged 12 and 13.
16You were born in Narrandera and grew up in Griffith and Rankins Springs, all regional towns in New South Wales. Your family moved to Griffith when you were eight to support your maternal grandfather, after his marriage ended. You and your parents lived on the farm your grandfather owned. Your grandfather had served in Vietnam and upon returning from duty suffered Post Traumatic Stress Disorder which contributed to his marriage breakdown. He has recently been diagnosed with Motor Neurone Disease.
17
You were school captain in Year 6 at school. Whilst in Year 10 you completed Certificate I in Hairdressing at TAFE. You met Trevor Firebrace when you were 16 and in Year 11. You left school part way through Year 11 to move to
Swan Hill to live with him.
18In Swan Hill you commenced an online course in Community Services, which you hope to complete after these proceedings are finalised. You hope to be a youth worker in the future. You have held various jobs, and are currently employed at Priceline, having worked there for approximately one year in a mixture of full-time and part-time capacity.
19
You are no longer with Mr Firebrace and this appears to be a good thing. Two intervention order applications were tendered on the plea by your counsel. Both applications were completed by police seeking an order against
Trevor Firebrace in your favour. The first, related to an incident in 2019, where Trevor Firebrace is alleged to have thrown things around. Apparently that order was granted but quickly removed. The second was made in July 2021, and I am informed an order was granted and is still in place. That application alleged numerous past assaults resulting in minor injuries and a specific incident of family violence involving Trevor Firebrace putting a hand on your throat, and damaging your property and threatening suicide. The police officer who made the application concluded, and I quote:
'The respondent is extremely controlling and violent. Police believe if the respondent locates the AFM [affected family member, and that's you], he will physically assault her.'
20Mr Keks urges some caution in accepting the contents of the applications, which are based on your instructions. I agree that some caution is necessary, and I do not know Trevor Firebrace's side of the story. Nevertheless, it is obvious that you, as a young impressionable woman, found your self in a relationship which was at least volatile, if not violent. In my view that is a matter of some significance which I take into account in your favour.
21You now live independently and have been doing so for some two years in rental accommodation in Swan Hill. You do not have any children.
22Since the incident, you have occasionally sighted Jordana Munro-Glare, but there have been no interactions and there has been no further offending.
Objective Gravity of your offending and moral culpability
23Two factors of central importance in determining any sentence, are the objective gravity of the offending and the moral culpability of the offender. If there was any doubt about the inherent seriousness of your offences, particularly the false imprisonment, the maximum penalties make it clear. Those maximum penalties are five years, for the common law assault charges, and 10 years, for the false imprisonment.
24Your behaviour on 16th and 24th of January was completely outrageous, and you should be ashamed of yourself. Indeed, you should have been ashamed of yourself after the first incident and vowed not to do anything like that again. Instead, what you did on the second day was worse. You were completely out of control on both days. It does not matter whether or not the victim and your boyfriend were having a relationship, there is absolutely no excuse for your physical violence, your threats and intimidation, especially as your victim was a 17-year-old child. Moreover, your assaults caused actual physical injuries as well as fear and humiliation and embarrassment, as Jordana was forced to flee from your car topless.
25True it is that the false imprisonment did not last for long, however that was only because your victim fled, not because you thought better of it. It really was dreadful behaviour.
26That said, there is obviously a wide spectrum of seriousness within any offence, and as serious as your conduct was, I consider it to be towards the lower end of the spectrum of seriousness for your particular offences.
27As far as your moral culpability is concerned, as I have said, you should have reflected on your behaviour after your first assault on the victim on the 16th, let alone do something worse on the 24th. However, I am not satisfied there was any premeditation behind the events of the 24th and I accept that you acted impulsively on both days. I take into account the fact you were only 18 at the time of the offending and immature yourself. The law recognises that young people are more prone to make ill-considered or rash decisions, and may have less insight and self-control than an older person. Further, they may not fully appreciate the seriousness or consequences of their conduct, which I am satisfied is the case here. In this regard, it is notable that you told the Community Corrections assessor that you are not the person you were back then and you don’t know why you committed the false imprisonment.
28I hope you have matured and that you have indeed learnt your lesson.
Impact of your offending
29I am also required to take into account the impact of your offending on your victims and their personal circumstances.[3]
[3] Ibid ss 5(2)(daa), (da) and (db).
30No victim impact statement was made by Jordana, but even without one it is obvious that the events would have been very upsetting and frightening. Not only was she physically injured from your assault on the 16th, she left her home and only returned when assured it was okay to do so. Then on the 24th, she was so scared she was prepared to run from your car without her top on.
31In one of her police statements, she explained how she remained fearful of what you and your mother would do next and was constantly anxious.
Plea of Guilty, co-operation and remorse
32You are entitled to a significant discount in your sentence for the fact you have pleaded guilty. You did not plead guilty at a very early stage, and indeed there was a contested committal hearing at which the victim and six other witnesses gave evidence and after which you pleaded not guilty. However, at that stage you were facing a more serious charge of kidnapping. Once the prosecution indicated it would be prepared to proceed on the present charges, you indicated your willingness to plead guilty straight away. This was immediately prior to a listed sentence indication on 5 April 2022, which did not proceed.
33In pleading guilty you facilitated the course of justice and took legal responsibility for your crimes. You also spared your victim and witnesses the ordeal of coming to court to give evidence again. Our Court of Appeal has recently emphasised the need for sentences to reflect the high value of pleas of guilty in the current COVID-19 environment where the legal system is under considerable strain.[4] That is, you get more of a discount now than you would in normal times.
[4] See, eg, Worboyes v The Queen [2021] VSCA 169, [39].
34I am not however, satisfied that you have any real remorse for the victim.
I accept you regret your actions and wish you had not done what you did, but I see nothing to indicate that that is because you appreciate the effect of your actions on the victim and feel sorry for that. You made denials to the police when interviewed. Admittedly, that was a long time ago, but you also pleaded not guilty at the committal and only yesterday told the Corrections assessor that the victim instigated the assault. Further, nothing in the two character references tendered on your behalf indicates any remorse on your part. To the contrary, they convey the impression that the writer's doubt the truth of what they call ‘the allegations’.35The fact I do not find your plea of guilty is accompanied by remorse is not an aggravating factor. You do not get any additional punishment for that. It just means you do not get an additional discount that you might otherwise have got.
Your character and risk of reoffending
36Now, I am going to turn now to your character, that is your innate character and your risk of reoffending.
37Although the offences that have brought you to court are serious, they are the only offences you have ever faced. You have no prior convictions and there has been no further offending in the last two and a half years. In my view you have a lot going for you, and your prospects of rehabilitation are excellent.
38Although one might have hoped you had stayed at school and finished Year 12, by leaving home and school as you did in the middle of Year 11 and starting life on your own with your boyfriend, you showed a real independence and maturity. The fact you were school captain in Grade 6, and the many jobs and courses you have done, both during and after leaving school, show that you are a hard working person with ambition. You have real potential to achieve something in life, whether as a youth worker, which is your present interest, or something else.
39The two character references, both dated 15 March 2022, one from your father and one from your grandfather, spoke of your caring and compassionate nature, and the fact that these offences, or allegations as they called them, were out of character for you. Your father confirmed your independent nature and also said you were respectful and reliable. Your grandfather said you were family orientated.
40The fact you have the support of your loving family, bodes well for your future as does the fact you are not saddled with any drug, alcohol or mental health problems.
41That you have excellent prospects of rehabilitation is a significant matter in your favour.
One other mitigating factor
42Now one other mitigating factor is the delay, and that's been of about two and a half years since the offending. This was caused partly because of the contested committal and presumably partly because of COVID-19.
43I have already said the delay has worked in your favour, in the sense that you have committed no further offences, which allows me to feel some confidence that these offences really were a one-off event. I do take into account however, the stress and anxiety you must have felt over the two and a half years whilst this matter was hanging over your head. I am told that you have put one course on hold, awaiting the outcome of these charges.
Purposes of Sentencing
44I am turning now to the purposes of sentencing. I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation, and protection of the community.
45Further, when there are multiple charges, as here, the total effective sentence must not offend the principle of totality. What that means is that you must not be punished any more than is proportionate and appropriate to your overall criminality.
46For offences such as yours, general deterrence and denunciation are important sentencing principles. That means there is a need to impose a sentence which will deter others from behaving similarly, and also indicates the Court’s condemnation of conduct such as yours.
47On the other hand, the law also recognises the paramount importance of promoting the rehabilitation of young offenders, such as you. Not only is this because young people have the greatest potential to rehabilitate, but also because it is by their rehabilitation that society will be best protected. Whilst it is also settled law that the importance of rehabilitation in the sentencing equation declines as the seriousness of the offences increases, I do not consider the objective seriousness of your offending is such as to significantly detract from the need to promote your rehabilitation.
48Specific deterrence, and community protection, are not so important in your case, because of my finding as to your excellent prospects of rehabilitation.
49As I have already indicated, I intend to impose a Community Corrections Order. The question for me is whether to impose a conviction or not.
50As well as the general sentencing principles which I have already set out, s 8 of the Sentencing Act says:
'In exercising its discretion whether or not to record a conviction,
a court must have regard to all the circumstances of the case, including; (a) the nature of the offence; and (b), the character and past history of the offender; and (c), the impact of the recording of a conviction; on the offender's economic or social well-being, or on his or her employment prospects.’
51In this case the prosecutor argued that the nature of the offence meant that a conviction should be recorded. In other words, it was too serious not to record a conviction.
52On the other hand, Ms Clark argued that a conviction – while she could not point to any specific detriment in your case - should not be recorded because it may be detrimental to your future prospects, and you do not have any prior convictions, nor have you been in trouble with the law subsequent to this matter.
53I have decided not to impose a conviction in your case. The reasons are:
·
Parity: your mother, who was a mature person and certainly should have
known better, was not convicted. To convict you may give rise to a justifiable sense of grievance, even taking into account her lesser role in the offending.
·The principles set out in the case of Worboyes: in these times of the pandemic, a plea of guilty attracts a greater discount that it would in other times.
·Thirdly, the importance of promoting your rehabilitation. Although no specific detriment was pointed to arising from a conviction, it is not possible to predict all scenarios in which you might be asked to disclose your criminal record and in which the disclosure of a conviction may be an impediment.
·Fourthly, the seriousness of the offending and the need for general deterrence and denunciation can be reflected in the sentence in ways other than the recording of a conviction, in particular by the conditions of the Community Corrections Order.
Community Corrections Order
54I have had you assessed for a Community Corrections Order, and you have been found suitable and indicated your consent. I asked the assessor to consider supervision as one of the conditions, but the assessor recommended that I not impose the condition of supervision, because the Corrections assessor also assessed you as being at low risk of further offending, and considered it was preferable to minimise the intervention with you.
55I have accepted that recommendation and am not going to impose a condition of supervision.
Sentence
56On all charges, I sentence you to a single Community Corrections Order. The order will last for one and a half years, so that is 18 months.
57You are to report to Swan Hill Community Correctional Centre within two working days.
58Now, as well as the mandatory conditions – because every Corrections Order has mandatory conditions that you not commit another offence, that you must not leave Victoria without getting permission, and various other things –I have imposed the following special conditions:
· You are to perform 250 hours of unpaid community work over the period of the order;
· You are to undertake other treatment and rehabilitative programs as directed.
59Now what that is designed to address is really the anger you displayed in these two offences, or two incidents. It is up to the Office of Corrections, what, if anything, they direct you to do in that regard, but what I had in mind and what is likely that they will look at, is anything to address any anger management issues that you have. Now, it maybe that they do not consider that you have an anger management at the moment, but certainly your offending discloses that back then you weren't able to control yourself.
60I direct that any hours that you satisfactorily undertake in treatment and rehabilitation are to be counted towards the 250 hours of unpaid community work, but only up to a maximum of 25 hours. So, in other words if you end up doing 50 hours of rehabilitative programs, then only 25 hours will be deducted from the 250 hours, and you will still have to do 225 hours of community work.
61Now your counsel will explain that order in more detail. But you must make sure, I need to tell you, that you comply with the order. Because breach of the order is an offence in itself. So, if you breach the order, you will be charged with breaching the order and that is an offence in itself. And in addition, you will be liable to be resentenced for the original offences, if you breach the order.
62Now the Corrections Order I have imposed is a relatively long order, especially for a young person like you, that is because of the seriousness of your offending, and also because I needed to allow time for you to complete any programs that are recommended.
63You should realise that the Community Corrections Order that I have imposed without conviction is an opportunity that I am giving you. If you breach the order resentencing you on the original offences is a real option, and in that event you are certainly likely to be convicted and may receive a more serious sentence.
64If I were to resentence you, I would have to take into account the extent to which you complied with the Corrections Order, so the more you complied, the less serious any resentence would be.
65Now, do you understand the sentence that I have imposed?
66OFFENDER: Yes, I do, Your Honour.
67HER HONOUR: And do you consent to the terms of that Corrections Order?
68OFFENDER: Yes, I consent to the terms.
69HER HONOUR: All right, thank you. So, what we'll do is we'll note that you've consented orally to the order, but we'll also arrange once I leave the Bench to have that order sent to you, so that you can sign it and then it will be sent back to us and you can keep your copy as well. I will also sign the order.
Section 6AAA
70If you had not pleaded guilty to the offences, if you had run a trial and if you had been found guilty of them by a jury, I would have sentenced you to a combination sentence of six months' imprisonment with a Corrections Order. So, you can see you get a big discount for pleading guilty.
71Now, it's really over to you now, in terms of what your future holds. As I said, I think you've got great potential, and I see this as a one-off and I hope that I'm proved correct in that regard, all right? Now, are there any other matters that I need to attend to?
72MR MIGHELL: Nothing further, Your Honour from my end.
73HER HONOUR: All right.
74MS CLARK: No, I'll just raise briefly the mechanics of forwarding the order to Ms McPherson and her signing it and sending it back. She's not presently at a location where that would be a simple thing for her to do, in the sense of being able to forward a scanned document.
75HER HONOUR: I think what we could do, sorry to interrupt you, is we've got the oral consent noted.
76MS CLARK: Yes.
77HER HONOUR: When she attends at the Swan Hill Corrections Centre, she can sign it then, and they can send it back to us.
78MS CLARK: Thank you for that indication, Your Honour, I've already discussed in advance with Ms McPherson that she attend as soon – on Monday at the earliest opportunity she has on Monday, and if that's satisfactory, I'm grateful for that indication.
79HER HONOUR: Yes, that's fine. All right, thank you. I thank counsel, both counsel and stepping in Mr Mighell as well, and we'll adjourn the court now.
80MS CLARK: If Your Honour pleases.
81MR MIGHELL: The court pleases.
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