Director of Public Prosecutions v McPhie

[2022] VCC 1748

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

AT Melbourne

CRIMINAL DIVISION

CR-21-02703

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM MCPHIE

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JUDGE:	HER HONOUR JUDGE HAWKINS
WHERE HELD:	Melbourne
DATE OF HEARING:	10 June 2022
DATE OF SENTENCE:	11 October 2022
CASE MAY BE CITED AS:	DPP v McPhie
MEDIUM NEUTRAL CITATION:	[2022] VCC 1748

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:   Guilty pleas - 1 charge of stalking – 1 charge of armed with criminal intent – sawn-off double barrel shotgun – 1 charge of common assault – 1 charge of possession of a drug of dependence – 1 charge of commit indictable offence whilst on bail – 1 charge of fail to answer bail – 1 charge of possess cartridge ammunition without license/permit – 1 charge of fail to comply with direction to assist – mid-range offending – high moral culpability – no criminal history – Verdins’ principles – deferred sentence to complete CISP program – rehabilitation – Worboyes’ principles.

Legislation Cited:        Crimes Act 1958 (Vic), s21A, s31B, s465AAA; s465; Drugs, Poisons and Controlled Substances Act 1981 (Vic), s73(1)(b); Bail Act 1977 (Vic), s30B; Firearms Act 1996 (Vic), s124, s146; Sentencing Act 1991 (Vic) s5, s18, s6AAA.

Cases Cited:R v Verdins (2007) 16 VR 269; Worboyes v The Queen [2021] VSCA 169.

Sentence: Total effective sentence of 168 days’ imprisonment, 2 year Community Corrections Order with conviction and a $1000.00 fine with conviction.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J Karitzis	Office of Public Prosecutions
For the Accused	Mr N Rofle	Rolfe Criminal Law Pty Ltd

HER HONOUR:

1William McPhie, you have pleaded guilty to:

·1 charge of stalking that carries a maximum penalty of 10 years’ imprisonment;[1]

·1 charge of armed with criminal intent that carries a maximum penalty of 5 years’ imprisonment;[2]

·1 charge of common assault that carries a maximum of 5 years’ imprisonment;

·1 charge of possession of a drug of dependence that carries a maximum penalty of 1 year imprisonment,[3] noting the Crown does not allege that the possession was related to a purpose of trafficking;

·1 summary charge of committing indictable offence whilst on bail that carries a maximum penalty of 30 penalty units or 3 months’ imprisonment;[4]

·1 summary charge of fail to answer bail that carries a maximum of 2 years’ imprisonment;[5]

·1 summary charge of possess cartridge ammunition without license/permit that carries a maximum penalty of 40 penalty units;[6] and

·1 summary charge of fail to comply with direction to assist that carries a maximum penalty of 2 years’ imprisonment.[7]

[1] Crimes Act 1958 (Vic), s21A

[2] Ibid, s31B

[3] Drugs, Poisons and Controlled Substances Act 1981 (Vic), s73(1)(b)

[4] Bail Act 1977 (Vic), s30B

[5] Ibid

[6] Firearms Act 1996 (Vic), s124

[7] Crimes Act 1958 (Vic), s465AAA

Circumstances of Offending

2William McPhie, the circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 13 May 2022,[8] the accuracy of which you accepted through your counsel. 

[8] Exhibit P1

3The victims in this matter are married couple, Michael and Susan Cooling. They were 60 and 61 years of age respectively at the time of the offending.

4You were 25 years of age at the time of the offending.

5From approximately February until September 2020, you resided at the residence of Mr and Mrs Cooling and worked with Mr Cooling at his business, ‘Hook & Cleaver Smokehouse’ in Boronia (‘the Smokehouse’).

6You resigned from the Smokehouse on 8 January 2021 after making several unsuccessful offers to purchase the business from Mr Cooling.

7Throughout January 2021 you and Mr Cooling had disagreements in relation to outstanding wages and entitlements allegedly owed by Mr Cooling to you. You attended the Smokehouse demanding payment on several occasions, often accompanied by a man known as ‘Dwain’. You considered that you were owed an amount in the vicinity of $8000. Mr Cooling paid you a final pay-out of $3,000 in cash. You were not satisfied and contacted the Fair Work Ombudsman to recover the alleged debt. By 2 July 2021 it appears that you became frustrated and formed the view that the Fair Work Ombudsman would not be able to assist you to your satisfaction.

8In or around January 2021, you were arrested and charged following Mr Cooling reporting a theft from the Smokehouse. You were bailed on 23 February to attend Ringwood Magistrates’ Court on 23 June 2021. That substantive charge is not before me, but forms the basis for the bail you were on when you committed the subsequent offences now before this court.

9The first charge of stalking relates to your offending between 30 January and 3 July 2021, when you stalked both Mr and Ms Cooling by calling their personal mobile phones and the businesses where they respectively worked.  You called Mr Cooling's mobile phone 35 times, sometimes leaving a voicemail message.  You called the Smokehouse landline 30 times and Ms Cooling's mobile phone 4 times.  You also called her workplace, a hairdresser, 8 times.  Most of these calls were terminated by the victims after a short period of time. 

10Summary Charge 10 of commit an indictable offence whilst on bail arose out of your conduct after 23 February, when you were on bail.

11Summary Charge 11 of failing to answer bail related to you failing to appear at the Ringwood Magistrates' Court on the assigned date of 23 June 2021. A bench warrant was issued for your arrest. 

12The most serious charge before the court, Charge 2, armed with criminal intent, arose out of a subsequent incident occurring on 2 July 2021.  At approximately 6.15 am on that day, Mr Cooling parked his vehicle in a car park approximately 100 metres away from the Smokehouse.  At approximately 5.15 pm that same day, he left his business and walked approximately 130 metres to a pizza shop on the same street as the car park.  Mr Cooling ordered pizza and arranged a pickup for 6 pm.  He then walked back to the Smokehouse. 

13At approximately 5:20pm William McPhie, you were the front seat passenger in a Holden Commodore that was driven by an unknown person. The vehicle was parked into a vacant spot, two places to the right of Mr Cooling’s car in the same carpark.

14Mr Cooling closed the Smokehouse with another employee at approximately 6:00pm and walked towards his car. Mr Cooling and the employee remained talking in the carpark between Mr Cooling’s car and the car you were in. The employee left, walking home. You partially exited your car but observed Mr Cooling lock his car and instead walk towards the pizza shop. You re-entered the Commodore and waited for Mr Cooling to return.

15Mr Cooling returned to his car carrying pizza at approximately 6:15pm. Whilst Mr Cooling was attempting to open his drivers’ door, you exited the Commodore, armed with a sawn-off double barrel shotgun concealed under a towel. You then approached Mr Cooling from behind and demanded he get into the Commodore.

16Mr Cooling immediately recognised your voice and turned around to face you. William McPhie, you did not attempt to conceal your identity. Mr Cooling observed you holding the shotgun pointed in his direction. You again demanded Mr Cooling ‘get in the car’ and he pushed you away with the pizza boxes and ran back to the pizza shop. This amounts to Charge 3 – Common Law Assault. Mr Cooling sought assistance from an employee at the pizza shop and called 000.

17You  returned to the passenger side of the Holden Commodore and fled the scene.

18You sent a Facebook message at 3:39pm on Saturday 3 July 2021 to the Smokehouse under an alias “Dave Lundy” saying ‘Tell Mick he has 3 hours to have $8000 in my account’. You also sent a text message at 3:59pm to Mrs Cooling’s mobile which read: ‘$8000 in my account buy (sic) 5pm today’.

19At approximately 10:00am on 6 July 2021 you were arrested by Police and conveyed to the Police Station for interview.

20Whilst you were in custody,  investigators executed search warrants at your home and seized:[9]

(a)   Two mobile phones;

(b)   approximately two grams of methyl amphetamine (amounting to Charge 4 – Possession of a Drug of Dependence); and

(c)   a black coloured fabric zip case containing four Champion 1300 shotgun cartridges (amounting to Summary Charge 13 – Possess Cartridge Ammunition without License/Permit).

[9] Pursuant to Firearms Act 1996 (Vic), s146 and Crimes Act 1958 (Vic), s465

21You gave a “no comment” interview in relation to the allegations and refused to disclose the PIN password to the two mobile phones seized as required (amounting to Summary Charge 14 – Fail to Comply with Direction to Assist).[10]

[10] Crimes Act 1958 (Vic), s465AAA(2)

22Information retrieved by forensic examiners from the Samsung mobile phone included the user account and previous logins, including the Facebook ID, associated with account name “David Lundy”. Several chat logs were stored on Facebook Messenger in the name of “Dave Lundy”.

23Contacts in the name of “Mick Cooling”, “Sue” and “Mick Cooling Home” were saved into the device.

24On 2 July 2021, you sent your girlfriend the following relevant messages:

·At 8:04pm, ‘Yeah I’m sorry I did something stupid and I have to hide out for a couple of hours’.

·At 8:05pm, ‘No I went to see Mick’.

25On 3 July 2021, you messaged the Smokehouse business page, writing:

·At 3:39pm, ‘Tell Mick he has 3 hours to have $8000 into my account’.

26A text message exchange was also located on the device, dated 2 July 2021, between you and a Fair Work Ombudsman representative. You were advised that should Fair Work not hear from you by 11.00am on 6 July 2021 it would be assumed that you no longer required assistance. At 11:08am, you responded: ‘Useless fucks’.

27A further text message exchange was located on the device, dated 2 July 2021 between you and a contact saved as ‘DW’. You and ‘DW’ discussed how you were planning on collecting funds to pay off an outstanding debt. Relevantly you sent messages at:

·11:20am saying: ‘I’m going to get money off Mick you want to drive?’.

·3:52pm saying: ‘I’m going to do him when his walking from his car tonight’.

·6:55pm saying: ‘Cunt ran’.

28A text message exchange dated 2 July 2021 was also located on the device between you and a contact saved as ‘dad’. You and ‘dad’ discussed your outstanding debt to your ‘supplier’. Relevantly you said:

·     At 11:09pm, ‘I nearly shit the cunt tonight had a gun to his fucking head the cunt ran like a little bitch’. At 11:11pm you clarified that you were referring to ‘Mick’. At 11:12pm, you again clarified that you meant ‘shot*’.

·     At 11:17pm, ‘Hence why I’m so pissed off with mick if it wasn’t for that slimy cunt I’d be in the clear’.

·     At 11:20pm, ‘Hence the little murdering side show that I nearly went on tonight’.

·     You discussed whether Mr Cooling would report the incident to police and at 11:28pm you said ‘Yeahh I recon has to be the dumbest cunt alive thinking he can fuck with me like that and get away with it’ (sic).

29A further text message exchange was located on the device dated 4 July 2021 between you and ‘DW’. At 2:28pm DW asked, ‘What happened to bang bang’. You responded at 2:29pm, ‘I still fucking have it if you would the read messages I sent you you would know that’ (sic).

30A photograph was taken on the device at 11:40pm on 1 July 2021 depicting a sawn-off double barrel shotgun being held over the photographer’s leg.

Personal Circumstances

31You are 26 years of age, born in NSW but raised in Tasmania. Your parents separated when you were 6. You lived initially with your mother and later your father. You had a fractured relationship with your father who removed you from the family home at 13. You were living out of home by 16 and moved around.

32You attended school until year 10 throughout Tasmania and Victoria. You commenced an apprenticeship as a butcher at age 16 and have worked as a butcher since then. You are currently employed as a butcher in Kew.

33You suffered a lower back injury after falling from a tractor some years ago. You still experience pain from this incident.

34You and your former partner, Kimberley, have a young son, Angus. He was born 3 months premature whilst you were in custody, requiring Neonatal Intensive Care.

35You are now separated from your partner and had full custody of your son, until very recently when you negotiated a 50/50 parenting plan. While you are at work, Angus attends day care and is looked after by your mother.

36Most significantly, I note that you have no prior criminal history. 

37I also note that you have been on remand during the COVID-19 pandemic, having vastly restricted opportunities.  To your credit, you have completed a number of courses in custody, including Narcotics and Alcoholics Anonymous meetings, which you attend weekly. 

Psychological Report

38I have the assistance of a detailed psychological report from Gina Cidoni dated 7 September 2021.  Ms Cidoni, who is a forensic psychologist, refers to incidents which occurred during your apprenticeship whereby you reported sexual abuse by your employer on multiple occasions.  You did not report these incidents and identify experiencing ‘suppressed trauma’ as a result.  You turned to drugs and alcohol to self-medicate and are open to engaging in counselling quite reasonably in the future. 

39Alcohol has been a problem for you since age 14.  You commenced using cannabis at age 13 before turning to amphetamines at age 15.  Later you turned to methamphetamine, cocaine, and MDMA.  Prior to your arrest, you report having used methamphetamine daily, but you report that you are currently clean of drugs.  A urine screen from May 2022 confirms this report.  Until your episode on CISP bail, you have not engaged in drug and alcohol rehabilitation.  You have attended eight sessions of alcohol and other drug rehabilitation during your period on bail.  I understand problem gambling has also been an issue for you. 

40Ms Cidoni opines that you exhibited major maladjustment in the form of post-traumatic stress disorder and adjustment disorder.  Following her assessment, she also notes that you exhibit symptoms of generalised anxiety disorder and substance use disorder. 

41She describes that you feel anxious, nervous, and often on edge.  You have trouble sleeping. You have low self-confidence and feelings of worthlessness, and, together with heightened physiological and psychological stress reactivity, this undermines your ability to respond functionally to stressors.  She opines that this would be likely to have influenced your offending behaviour, and the escalation of your behaviour between January, when you left your employment at the Smokehouse, to the most serious incident, is an example of this escalation. 

42Ms Cidoni opines:

“The concern about lengthy imprisonment is that it will further reduce…[you] and will lead to continued dysfunctional community adjustment. Further, the volatile and unpredictable nature of this environment could exacerbate …[your] symptoms and result in debilitating mental and emotional reactions and painful consequences. …[Your] access to treatment will also be limited.”

“…[You] will require intensive substance abuse treatment. Certain medications can help …[you] with …[your] symptoms and intensive psychotherapy should begin immediately upon …[your] release from prison and continue for at least 12 months. …[You] require trauma-focused interventions and behaviour therapy to develop techniques to manage …[your] symptoms more effectively, improving …[your] interpersonal effectiveness, emotional regulation, and distress tolerance. These factors will lower …[your] risk of reoffending.” (emphasis added)

43I take into account the evidence about the nature, extent and effects of the mental impairment you experienced at the time of your offending. They will operate as mitigating factors for the purpose of sentencing you in accordance with the principles outlined in Verdins’ case.[11]

Risk of Reoffending & Rehabilitation

[11] R v Verdins (2007) 16 VR 269, 271[8]

44This matter was first listed for plea before me on 10 June 2022, and at that time, you had been on the Court Integrated Support Program (CISP) as a condition of bail for approximately six months.  You were making good progress on that program and were keen to engage in the various therapeutic options offered to you.  Accordingly, I agreed to defer sentence for three months to allow you to do such things as to commence psychological, alcohol and drug counselling, to provide the court with a progress report about that counselling, to sign up for a men's behaviour change program, and to provide the court with supervised urine screens to confirm your self-reported abstinence from drugs.  I also sought that an update from Child Protection be provided about what was required of you.  On that last point, I have today received an email confirming that Child Protection is no longer involved in respect of Angus. 

45A final CISP report dated 7 October 2022, authored by Bonny Grant, was tendered on your behalf.  The CISP report annexes a client progress report dated 5 October 2022 from an ACSO clinician, which is the Australian Community Support Organisation, Mandy Telfer. Ms Telfer reports that you have completed eight sessions of drug and alcohol counselling as a voluntary client and ‘appeared to adopt all education provided to …[you] and maintained strong communication and willingness during treatment’. You identified that your mental health issues were ‘a major factor for …[your] drug use.’ Ms Telfer, quite reasonably, highly recommends that you continue to engage with mental health support. 

46The final CISP report confirms that you obtained a mental health care plan in January of this year.  In May, CISP referred you a clinical psychologist, Mr Sydney Johnstone, in Carlton North.  After some misleading contact from DFFH, Mr Johnstone unhelpfully decided to terminate his therapeutic relationship with you, stating that he was not trained in dealing with domestic violence and drug abuse.  This poor experience has left you without mental health support moving forward, and you are still awaiting a further referral through Head to Health.  I will ask that Community Corrections follow up, as a matter of priority, these referrals. 

47Your final CISP report notes that you do not feel that anger management is a concern for you at the present time and that you prefer to prioritise your mental health needs.  You have, therefore, not progressed your assessment for a men's behaviour change program or anger management counselling.  As I expressed to you earlier, this is a serious concern given your offending that comes before this court and is a matter that you will need to prioritise during the life of your community corrections order. 

48In conclusion, the factors raised by Ms Cidoni for which you require treatment to reduce your risk of reoffending have not, in my view, been adequately addressed during the deferral of your sentence. 

49Despite her current assessment that you are at high risk of reoffending, Community Corrections have assessed you as suitable to be placed on a community corrections order, which can be tailored to support your rehabilitation in the ways outlined by Ms Cidoni and that I have referred to above. 

50Mr Rolfe, on your behalf, submits that you show strong prospects of rehabilitation given the courses that you completed in custody, your positive engagement during the deferral of your sentence over approximately 10 months, and the various prosocial factors in your life, including stable accommodation, secure employment, and your now-settled parenting arrangements.  He submits that there is little utility in returning you to custody, and, significantly, Mr Karitzis, for the Director, does not oppose a combination sentence.  I accept that, given your lack of prior convictions, youth, and progress made to date, rehabilitation ought be given greater weight in sentencing you than it might otherwise be. 

Sentencing Considerations

Plea of Guilty

51You accepted a plea offer on 18 November 2021, with a plea of guilty to the charges on the indictment entered at an application for summary jurisdiction on 10 December 2021.  In so doing, you avoided the need for trial, saved witnesses the stress of giving evidence in court, and avoided the use of public resources that would have otherwise been spent conducting that trial.  I accept that this is an early plea in the circumstances and take the utilitarian value of your plea into account. 

52In accordance with the principles in Worboyes’ case,[12] you are entitled to an actual and palpable amelioration of your sentence by virtue of your plea entered during the pandemic. 

[12] [2021] VSCA 169

Victim Impact Statements

53Michael Cooling, in his victim impact statement, describes his fear of being confronted with a gun.  As a result of his incident, he has sold his shop and has not worked since.  He describes that he does not go out much anymore because he cannot trust anything.  Sue Cooling also describes mistrust and that she experiences a lot of anxiety and feeling on edge.  She feels that the world is now different and that impact has been immense. 

Relevant Sentencing Principles

54In sentencing you, I must have regard to a range of matters, such as the seriousness of your offending, your culpability for it, and your personal circumstances.  I must balance the interests of the community in denouncing criminal conduct with the interests the community clearly has in seeking to ensure as far as possible that offenders are rehabilitated and reintegrated into society.  I must impose a sentence which is proportionate to the gravity of the offence, considering the circumstances, and the sentence must be no more than is necessary to satisfy those various objectives of sentences. 

55I have taken into account the relevant sentencing principles referred to in s5 of the Sentencing Act and also current sentencing practices for the offences to which you have pleaded guilty, as well as the important principles of both totality and proportionality. 

Sentence

Imprisonment

56William McPhie I sentence you as follows:

57On charge 1 (Stalking) you are convicted and sentenced to 3 months imprisonment;

58On charge 2 (Armed with Criminal Intent) you are convicted and sentenced to 168 days imprisonment; This is the base sentence

59On Charge 3 (common assault) you are convicted and sentenced to 4 months imprisonment;

60On charge 4 (possession of a drug of dependence) you are convicted and sentenced to 7 days imprisonment;

61On summary charge 10 (commit indictable offence on bail) you are convicted and sentenced to 30 days imprisonment;

62On summary charge 11 (fail to answer bail) you are convicted and sentenced to 14 days imprisonment;

63On summary charge 13 (possess cartridge ammunition without a licence/permit) you are convicted and fined $1000; and

64On summary charge 14 (fail to comply with direction to assist) you are convicted and sentenced to 14 days imprisonment.

65These terms are to be served concurrently. That is, the total effective sentence is 168 days imprisonment.

Community Corrections Order

66On charges 1, 2 and 3 you are also convicted and sentenced to a Community Corrections Order of 2 years which will commence today.

67The conditions of this order are:

(a)   You must attend at Reservoir Community Corrections Service by 4pm on  14 October 2022 for induction;

(b)   You will be under the supervision of a Community Corrections Officer for 2 years, which means that you are required to be supervised, monitored and managed as directed;

(c)   You must undergo assessment and treatment (including testing) for:

(i)alcohol abuse dependency as directed;

(ii)drug abuse dependency as directed;

(iii)mental health as directed; and

(iv)programs to reduce your risk of re-offending.

(d)   You are required to perform 200 hours of unpaid community work as directed, over 2 years;

(e)   I order that 100 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition;

(f)    You must not commit an offence punishable by imprisonment during this order;

(g)   You must not leave Victoria without permission of Community Corrections;

(h)   You must let your Community Corrections Officer know within 2 clear days of changing address or a job;

(i)    You must comply with any lawful direction given by a Community Corrections Officer that is necessary to ensure you comply with the order;

(j)    If you contravene this order by either committing further offences, or by failing to comply with the conditions then you can be brought back before this Court, fined and resentenced. That might mean you go to jail for these offences.

68HER HONOUR:  So, do you consent to being placed on this order? 

69OFFENDER:  Yes, Your Honour. 

70HER HONOUR:  Thank you.  You have indicated your oral consent to this order, which I direct be entered onto the court record. 

Pre-Sentence Detention

71Pursuant to s 18 of the Sentencing Act 1991, the period of 168 days of pre-sentence detention (not including today) is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the Court records.

Section 6AAA Declaration

72Pursuant to section 6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a term of  18 months imprisonment with a non-parole period of 12 months.

Ancillary Orders

73I make the disposal and forfeiture orders sought by consent.

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