Director of Public Prosecutions v McQuillan

[2023] VCC 1240

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-23-00016

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER MCQUILLAN

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JUDGE:	JUDGE HARPER
WHERE HELD:	Melbourne
DATE OF HEARING:	29 June 2023
DATE OF SENTENCE:	13 July 2023
CASE MAY BE CITED AS:	DPP v McQuillan
MEDIUM NEUTRAL CITATION:	[2023] VCC 1240

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Plea of Guilty – One Charge of Attempted Armed Robbery – Remorse – Metal Door Handle

Legislation Cited:      Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v DPP [2021] VSCA 169 

Sentence:                  12 month Community Corrections Order with conviction

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S. Tamburro	Office of Public Prosecutions
For the Accused	Mr C. Farrington	Hannebery Law

HER HONOUR:

Plea of Guilty and Maximum Penalty

1Mr McQuillan, you have pleaded guilty to one charge of attempted armed robbery, committed on 29 September 2022.

2The maximum penalty for the offence of attempted armed robbery is 20 years imprisonment.

3You come before the court of prior good character.  You have no criminal record in this country, nor have you been charged with subsequent offending.  You have been on bail without incident since your arrest. 

Circumstances of the Offending

4On 29 September 2022 at around 7:05 pm you entered Malvern Valley Liquor. You had in your possession a metal door handle. The attendant working at the time, Mr Rinat Nur, was behind the counter of the bottle shop.  

5You held the door handle above the head of Mr Nur in an aggressive manner and then demanded money from him, saying ‘give me money’ and similar phrases to that effect. To protect himself, Mr Nur picked up a wrench from behind the counter.

6You and Mr Nur then walked to the end of the counter where Mr Nur put his arms on the front of your shoulders and said ‘you don’t want to do this,’ to which you replied ‘I need money.’ Mr Nur replied “I understand, but I can’t give you money.”

7Mr Nur then guided you out of the shop.  You began to cry and explained to Mr Nur your difficult situation, including that you had been mugged, were desperate and that you could not pay your rent. Mr Nur told you he was sorry for you but reiterated that he could not give you any money.

8You then asked Mr Nur for a hug which Mr Nur agreed to. You placed your weapon down on the floor and proceeded to hug Mr Nur twice for around 5 seconds each time. You then continued to speak with Mr Nur while he patted your back and guided you out of the shop.

9You collected the door handle, apologised to Mr Nur and left the shop at around 7:10 pm. You did not harm Mr Nur, nor did you take any money from either Mr Nur or the shop.  

10An hour after you left, Mr Nur closed the shop and contacted police to report the matter.

11Police later located you lying on the nature strip outside a property in Bowen Street, Malvern East.  You were unresponsive and breathing shallowly and a hospital tag was observed on your wrist bearing your name. 

12Paramedics placed you on a stretcher, at which time you struggled, yelling out that aliens were probing you.  You were then conveyed to hospital.

Record of Interview

13You were interviewed by police on 3 October 2022.  In that interview you stated that:

a) you had no recollection of the incident, nor of that day;

b) you think you purchased 40 Xanax tablets the night before the offending;

c) you found 4 empty sheets of Xanax, meaning you must have taken 40mg of it;

d) you had a vague memory of drinking a bottle of bourbon, and chugging the whole thing;

e) you were on a mission to obliterate yourself, and potentially die and

f) you were hospitalised on 28 September 2023 for a mental health episode.

Gravity of Offending

14The offence of attempted armed robbery is a serious one but it is conceded that your conduct was towards the lower end of seriousness.  There was some pre-planning in that you had armed yourself with a metal door handle.  As the CCTV footage which I have viewed shows, you appeared to be intoxicated by one or more substances and both agitated and distressed.  

15The victim was confronted by an armed masked offender which must have been a frightening experience but fortunately for you he acted rationally and with compassion.  There was no injury sustained by the victim and the incident was, as your counsel submitted, fleeting in nature.  There is no Victim Impact Statement.

Plea of Guilty

16The parties agree that your plea of guilty was entered at the earliest opportunity.  This has significant utilitarian benefit.  You have saved the court and the community the time and expense of running a trial and spared the victim the ordeal of giving evidence.  In those circumstances, you have facilitated the administration of justice and you are entitled to a benefit for that.

17The utilitarian benefit of your plea is enhanced by the fact that the Worboyes’[1] considerations are engaged. This results in a more pronounced amelioration of sentence than at other times.

[1] Worboyes v DPP [2021] VSCA 169 

Remorse

18By your plea of guilty, you have demonstrated an acceptance of responsibility for your offending.  Further, you demonstrated immediate remorse at the time of the offending, evident in your apology to the victim and your hugging him.  You went on to cooperate with police and the parties agree that you have shown genuine remorse for your misconduct.  I will moderate the sentence to reflect this. 

Personal Circumstances

19I turn now to your personal circumstances.

20You were born on 18 November 1992 in Australia and moved to the United States with your family when you were aged 2-3 years old. 

21You are the youngest of 4 siblings and come from a high achieving family. Your parents separated some time ago.

22You are a dual Australian/US Citizen. Your mother and two of your siblings still reside in the United States. You do not have a close relationship with those siblings but do speak to your mother regularly over the telephone.  They remain supportive of you, from a distance.

23Your father and sister reside in Australia and you are close to them. 

24You were educated in the United States.  

25At age of 16-17 you were admitted to a rehabilitation facility. Your family decided to return to Australia as they believed a change of environment may have a therapeutic effect on you. 

26At 19 years of age you returned to the United States before eventually settling in Australia. 

27In your young adult years you commenced a degree in neuroscience at the University of Vermont but did not complete this. 

28You have worked various odd jobs including part time positions working in a café, as a labourer, in a warehouse and as a dental technician but have not worked for some 12 months. 

29You are a bright individual but have been plagued by serious mental health issues and drug and alcohol abuse since an early age. This has unfortunately prevented you from attaining long term employment or completing a tertiary degree, however you now aspire to be a labourer or a drug and alcohol counsellor.  

30Your mental health issues and substance abuse have also prevented you from maintaining romantic and platonic relationships.

Substance Abuse

31You have suffered with drug addiction since the age of 14 and you have had 5 admissions to psychiatric wards. You were drug affected during this offending. You have abused drugs including heroin, GHB, Xanax and any other illicit substances that you could get your hands on.  

32You have suffered a fifteen-year heroin addiction, having first tried the drug at age 15.  You are currently on the methadone program. 

33Your alcohol abuse is intermittent but at its worst it can leave you unconscious and out of control. During this offending you were severely intoxicated. 

Mental Health

34A number of medical reports and references were tendered on your behalf.  You have been found to suffer from a number of conditions, namely: 

a) Borderline personality disorder 

b) Bipolar disorder 

c) Attention Deficit Hyperactivity Disorder 

d) Autism spectrum disorder 

e) Obsessive Compulsive Disorder 

f) Major Depressive Disorder; and 

g) Anxiety 

h) Drug Dependence 

35You are prescribed a number of medications, including:

a) Clonidine to treat ADHD and drug withdrawal

b) Dexamphetamine to tread ADHD

c) Diazepam 

d) Quetiapine, an anti-psychotic

e) Vortioxetine, an anti-depressant

36I received a letter from Jakline Bharko from The Hader Clinic in St Albans Park dated 28 June 2023. You have previously sought drug treatment there and successfully completed a 28 day residential program in November 2022.  Nevertheless, your drug addiction has persisted. 

37You have, according to a letter from Rebecca Warden, Director of Nursing and Operations at Arrow Health dated 29 June 2023, twice entered a 90 day residential program for addiction treatment, once in 2022 and again in 2023.  You self-discharged against medical advice on both of these occasions, once after 60 days and once after 50 days. 

38At this point, your mental health and behaviour were observed to deteriorate and paranoia set in.  Ms Bharko states that while Arrow Health attempted to support you, “recovery is not possible until he receives the mental health support required.” 

39Ms Barkho continues, “We have grave concerns for Mr. McQuillan’s future and feel that incarceration would exacerbate his already fragile mental state and that he is at great risk of suicide and self-harm; we are strongly advocating for Mr. McQuillan to be admitted involuntarily to long term psychiatric treatment for intensive assessment over time.”   

40According to a letter dated 28 June 2023 you were to be admitted to the Delmont Private Hospital on 3 July 2023 for mental health treatment under the care of consultant psychiatrist Dr Ehsan Rahimikia. 

Sentencing Principles and Factors

41The principles of general deterrence, denunciation and just punishment are of course relevant considerations but in your case I consider that rehabilitation is of primary important. With appropriate supports, your prospects of rehabilitation are good, as is conceded by the prosecution.  Your rehabilitation will be of benefit not only to you, but it is in the best interests of ongoing community protection. 

42Your counsel, Mr. Farrington, submitted on your behalf that I should sentence you to an adjourned undertaking.  Mr. Tamburro, for the prosecution, submitted that a Community Corrections Order was called for. 

43I was provided with a number of comparable cases.  I consider the instant offending to be peculiar in its circumstances and of lesser seriousness than the matters I was referred to. 

44On 29 June 2023, I had you assessed for a Community Corrections Order.  During your assessment you engaged well with the assessor and reported being at a low point in your life at the time of the offending.  You openly disclosed your drug and alcohol dependence and detailed your various mental health diagnoses. 

45You were also assessed by the Mental Health and Advice Response Service (MHARS).  In addition to again revealing the matters discussed with the Community Corrections clinician, you detailed a history of suicidal ideation and deliberate self-harm behaviours.  You did however present with appropriate insight and judgment into your mental health.   

46The MHARS assessment recommends ongoing assessment and treatment of your mental health as a condition of any order.  It is the view of the assessor that increased self-awareness about your own psychological symptoms and other pro-active and pro-social strategies to manage your symptoms could also decrease your need for illicit substances. 

47While the proposed mental health treatment at Delmont Private Hospital will no doubt be intensive, I am concerned by your previous self-discharges from the Arrow Health residential program.  I am also concerned that there is no dedicated drug treatment component to your treatment at Delmont Hospital.  Should you not complete the in-patient program, I consider there to be a risk that you will be unsupervised and without treatment in the community and accordingly I intend to place you on a Community Corrections Order, for which you have been found suitable, to ensure that you are properly supervised and supported. 

48I do not consider that work hours would be of benefit to you.  I instead intend to impose a rehabilitative order only. 

Disposition

49In relation to the charge of attempted armed robbery, you are convicted and sentenced to:

·A 12 month Community Correction Order. 

·Report to Moorabbin CCS within two working days of being sentenced.

·To  comply with supervision.

·To undergo assessment and treatment as directed for your mental health.

·To undergo assessment and treatment as directed for drug addiction.

·To undergo assessment and treatment as directed for alcohol addiction.