Director of Public Prosecutions v McRae

[2014] VCC 1118

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-0070/01034/96

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER MCRAE

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	15 July 2014
DATE OF SENTENCE:	15 July 2014
CASE MAY BE CITED AS:	DPP v McRAE
MEDIUM NEUTRAL CITATION:	[2014] VCC 1118

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Plummer
For the Offender	Ms D. Caruso

HER HONOUR:

1Mr McRae, you can remain seated until I tell you to stand; okay?  Thank you.

2Peter McRae, you have pleaded guilty before me to a number of charges which are made up in three separate indictments.  On the first indictment, No. D13811794, you pleaded guilty to one charge of armed robbery.  In relation to the second indictment, No. D201408643 you pleaded guilty to two charges of theft, one charge of robbery and one charge of recklessly causing serious injury, and you also pleaded guilty to the summary charge of failing to appear.  On the third indictment, No. D13515445, you pleaded guilty to one charge of burglary, four charges of theft, one charge of aggravated burglary, one charge of intentionally causing injury and one charge of recklessly causing injury.  In relation to that third indictment you also pleaded guilty to summary offences of resisting arrest and stating a false name to police.

3The facts underlying your offending are as follows:  I refer firstly to the first indictment, D13811794 and the charge of armed robbery.  This occurred on the night of November 1 when you with your co-offender Brett Atkinson waved down a taxi in Plenty Street in Preston.  You got into the front passenger seat and directed the taxi to drive to an intersection in Preston, where on arrival you got out saying you needed to change your pants.  You went into a nearby house and came back about five minutes later with a backpack and told the driver to take you to Fitzroy.  The taxi performed a U-turn at which stage you said you had forgotten something else, and both you and Atkinson got out and went back into the same house that you had gone into previously, returning about two minutes later and getting back into the taxi.   You instructed the taxi driver to drive you towards Fitzroy, eventually directing him to a destination in Lonsdale Street in the CBD.  During the journey alcohol and the backpack were passed between you and Atkinson. 

4When the taxi driver asked for the fare you began looking through your pockets before reaching into the backpack at your feet and pulling out a black knife approximately 30 centimetres long.  You held it below the dashboard pointing it to the driver and asking, "Do you still need money?"  The driver of course said, "No."  You then said, "No, we are not leaving your car, just give us your money and your gold rings," before then asking the driver if it was his wedding rings, he saying it was, and you saying he could keep them.  But you then insisted on being given money.

5The taxi driver said he had no money but could take you to an ATM.  You asked again for money and he gave you about $500 from his top shirt pocket.  The two of you then got out of the taxi, swapped jackets and walked towards Exhibition Street.  You were spoken to by police shortly afterwards who were unaware of the offending.  Eventually you were arrested on unrelated matters on November 21, but were not interviewed in relation to armed robbery, but ultimately correspondence was received by your lawyer leading to police laying those charges against you.

6I now turn to the charges contained in Indictment No. D201408643, that is charges of theft, robbery and recklessly causing serious injury.

7On February 2, 2013 you went into a Coles supermarket in Echuca to buy a packet of cigarettes, but as no one served you, you decided to enter the store and steal a DVD.  You selected a particular DVD which you carried to the ice-cream section where you picked up a box of ice-creams and put the DVD under the box.  While you walked down an aisle you opened the disk cover and put the disk into your pocket.  You then replaced the ice-creams on a shelf in the make-up aisle, but at that stage believed you had been caught or had been followed so put the disk on the shelf in the same section.  You then left the store and took off on a bike.  You were known to police and were identified from footage and was apprehended at your home and made full admissions.  The value of the DVD was $13.

8The next matter occurred on 1 March 2013 where the victim, Mr Tom Kogios, parked his green Mercedes Benz at Northland Shopping Centre in the car park.  At about 1 pm you and your co-accused, Ron Kerr, went to Northland and found the car in the car park, Kerr getting in by forcing the sun roof.  You stood by and kept watch.  Kerr stole a pair of Versace sunglasses from inside the car, which were given to you, you having the intention to wear them.  Ultimately you were identified via fingerprints and were arrested on 20 March where you made full admissions to theft of the sunglasses.

9On 31 March 2013 at about 2 o'clock in the morning the victim in this matter, John Brannagh, left a bar on Johnston Street Fitzroy to head to a friend's house.  Soon after you and your co-accused, Graham Austin, approached him, Austin asking Brannagh if he wanted a head job and distracting him by propositioning him for sex.  Brannagh was declining the offer, and the two of you followed him into Victoria Street where you asked him for money.  When he refused you demanded Brannagh’s wallet.  You lunged at Brannagh and tried to grab his wallet but he covered his pocket.  You then punched him to the face several times.  He fell to the ground where he was continually punched and kicked by you.  You stole his wallet and both you and Austin then fled.   

10As a result of your attack Brannagh suffered a fractured nose, abrasions to a knee and bruising to the face and eye area.  CCTV footage of the area shows you and Austin running down Victoria Street after having robbed Branner.  You were arrested in April but declined to be interviewed by police.  You failed to appear at the Echuca Magistrates' Court on 23 April 2013.

11Finally, I turn to charges contained in Indictment D13515445.  On that occasion, that being 7 September 2013, a house at 23 Greenhills Road, Bundoora was burgled by you.  You obtained entry by throwing a brick through a laundry door.  From the premises you stole a laptop, a brown leather bag, welding glasses, Rhino winter gloves, a mobile phone, a lecturer's recording device, a Toshiba 15-inch screen television, a Panasonic camera, assorted paperwork and related documents.  They belonged to one of the residents of the property, Mr Anthony Lingham.  You also stole an Apple iPod, a Keiser scanner, a camera, a diamond watch, a pearl necklace, a voice recorder and two pairs of safety glasses belonging to a second resident of the property, Mr Raymond Lingman.  The property was worth several thousands of dollars in total.

12Blood was found on a power board, you apparently having cut yourself whilst getting through the broken glass in the door.  DNA analysis of that blood sample proved extremely strong support to find that the blood belonged to you.

13On 21 November 2013, you and a co-accused, Joseph Atkinson, went to a house at 52 Crevelli Street, Reservoir, where the victims, Lewis McKenzie and Courtney Tooth were at home.  They were also being visited by friends, Flynn Gregory and Spencer Bainbridge.  The two of you entered the house, the front door of the house each carrying a wooden stake, Atkinson having a red bandana across his face.  Bainbridge walked from the kitchen when he heard a bang and screaming, and when he saw the two of you, stopped at the kitchen door.  You said to him, "This is a home invasion, do whatever the fuck we say."  You pointed the wooden stake at him, at Gregory, and said, "Shut the fuck up, be quiet, don't speak." 

14The two of you went to the coffee table and took three iPhones belonging to McKenzie, Atkinson and Tooth, and Bainbridge's wallet from a black bag.  Atkinson produced a silver screw driver from his front pocket and told Gregory, who had yelled out to McKenzie, to "Shut the fuck up."  You swung the stake at Gregory's head, he raising his arm to protect himself and being struck on the forearm sustaining grazes. 

15McKenzie came out of the bedroom where he had been, and Atkinson pointed his stake at him and told him to go back into his room.  McKenzie went back in and closed the bedroom door and locked it, telling Tooth, who was also in there, to get under the bed.  They could hear voices yelling, "Where's the money?"  McKenzie then opened the bedroom door and saw you drop something and he tried to grab the stake out of your hand.  The two of you struggled and Atkinson grabbed McKenzie, pulling his jumper over his head and falling to the ground.  You were on top of him.  McKenzie heard someone say, "Kill him," and he was punched to the head multiple times and yelled out to Gregory for help.  Gregory grabbed the stake from you and told you to get out of the house and hit you with the stake twice.  You stumbled and then you and Atkinson ran from the house followed by Gregory and McKenzie.

16The two of you ran in opposite directions along the street.  Eventually police arrived.  A police officer saw you and called out and you ran away.  Police followed you into the rear of a property and there told you to get on the ground, which you refused to do but then complied.  You were told repeatedly to lie on your stomach, but the police were unable to handcuff you because you had pinned your arms under your body, and you were told to stop resisting.  Eventually they pulled your arms free, you were handcuffed and placed under arrest.  You were asked for your name and address and date of birth, and you gave false details to them.  Police found the iPhone stolen from Bainbridge in your front pocket.  You were taken to the Heidelberg Police Station.

17You sustained a fracture to your arm during the arrest and were taken to the Austin Hospital for treatment and subsequently surgery was performed upon your arm.  McKenzie was examined by a doctor who noted puffiness around his eyes and symptoms of concussion, and Gregory was found to have suffered contusions to his right forearm, scabby bruises, swollen muscles, and you refused to take part in a record of interview.  That comprises the offences for which you were brought before this court. 

18I now turn to your personal circumstances.  You are 19 years of age, one of four children born to your mother who was an Aboriginal woman, and you have an older brother, a younger brother and a younger sister.  Your mother was one of nine children who were removed by authorities when they were very young and placed in foster care, that is they were of Stolen Generation children. 

19Your mother was the centre of your family essentially.  You spent a childhood being moved around between Adelaide, Brisbane and Melbourne; ultimately your family settling in Preston.  Your mother contracted gestational diabetes when she was pregnant with your youngest brother.  She suffered a particularly painful form of this diabetes and along the way suffered a great deal, being cared for by you children but having to undergo a number of amputations.  Finally, after much suffering and much difficulty she died in 2010 when you were about 14 or 15.  It would appear that because of her experiences as a Stolen Generation child she was very wary of authorities and very much kept herself and you children as a separate little group, if you like.  She was extremely wary of authorities, it would appear worried about you being removed from her, and so you grew up in a very tight family group without interacting very much with the Koori or other Aboriginal community where you lived.

20You suffered a number of difficulties with your education, having been moved around a great deal, and subsequent testing has revealed that you suffer a number of learning and intellectual difficulties.  After your mother died, your younger sister Gina was removed by the Department of Human Services and placed with an aunty in Adelaide.  You were very fearful of yourself being removed by the Department of Human Services, and fled, living on the streets for a number of years.

21You have along the way, unsurprisingly in the circumstances, clocked up, if I can put it that way, a number of prior criminal convictions, they beginning in 2009 with a shop steal, you being dealt with in 2011 on a large consolidation of primarily dishonesty and violence offences comprising burglary, theft, assault, recklessly causing injury, criminal damage, theft of motor vehicle, assault and resist police, recklessly causing serious injury, aggravated burglary, armed robbery, making a threat to kill, and so forth.  You were ultimately placed on a Youth Supervision Order.

22You began drinking, and alcohol has been a major problem for you, at about the age of 13 or 14.  Ultimately after living unsuccessfully with your older brother, who has alcohol problems, you moved to Echuca where you lived for some time, there being another brother there, and whilst engaging in some offending, as is detailed in the offence summaries that I have outlined, formed a relationship with a young woman with whom you have a young son.  At the time of much of this offending, your difficulties with alcohol in particular had led to you being ejected from your house in Echuca by your partner. 

23You wrote a letter to the court, which I found extremely helpful.  This is unusual.  Usually when accused people write letters to courts, they contain a whole lot of excuses for offending, and I found what you had to say about your offending honest, moving and genuinely remorseful.  You spoke about the profound effect the loss of your mother had upon you.  You said that this destroyed you emotionally, and she was your rock.  You stated:  "I have only just started to address my loss and grief whilst in prison and am now starting to find some relief from this tragic event in my life."

24You are still supported by your partner.  The two of you have been together for about four years.  Your son is now aged 17 months.  Your partner has obtained her own house in Echuca, and that is where you intend to live on your eventual release. 

25Whilst in custody, where you have been for about eight or nine months now in difficult conditions in the Melbourne Remand Centre, you have undertaken a number of courses, and it is noteworthy that amongst those courses have been the completion of an AOD and depression course, which is extremely important for someone like yourself who has suffered so much loss and trauma.  You have completed a Certificate 2 in kitchen operations and a Certificate 2 in cleaning operations.  You are clearly a talented artist.  A sample of your work was tendered during the hearing.  Of concern to the court is the fact that the injuries you suffered in the arrest to your arm which resulted in several operations have not been properly attended to whilst in adult custody.  You are a talented footballer apparently, but the sort of physiotherapeutic attention that ordinarily should follow on the sorts of operations that you have had have not been administered to you, and the concern is that you could suffer a long lasting and permanent injury to your arm. 

26I am satisfied that you in the last few months have very much used your time in gaol in as positive a way as you possibly can.  I am satisfied that your offending occurred at a time of extreme dislocation in your life in the aftermath of your mother's very tragic and drawn-out death.  I am satisfied that as a result of your mother's death, not only did you suffer a massive emotional blow, but the fear of the Department of Human Services which had been engendered in you by your mother, the loss of your sister to foster care in another State - and I note that you are very close to her - led you to a situation where from a young age you were essentially homeless, were unsurprisingly succumbing to substance abuse, in particular alcohol abuse, and that this offending occurred in that context.  I note that whilst you have an offending history, it did not occur really until the very late stages of your mother's illness and after her death. 

27I certainly regard you as a person who has very positive prospects of rehabilitation.  I sought information from Justice Health about the treatment for your arm that you have had whilst in gaol.  It is particularly concerning to me that a young person who is a talented sportsman, notwithstanding that they have offended in the way you have, may be rendered unable to participate in that positive lifestyle because of neglect in the aftermath of an injury to your arm and in a way which could prevent you from participating in that sport on a long-term basis.  Certainly Justice Health have confirmed that you have not received the sort of physiotherapy that anybody who underwent the operation you did would require.

28As a result of all those factors it seems to me appropriate that I have you assessed for suitability for placement in a Youth Justice Centre.

29When you first appeared before me via the Koori Court of the County Court, the only charge that was being dealt with was the charge of armed robbery.  It then transpired that there were other matters outstanding and a further plea took place in the more conventional setting. 

30Certainly you have to understand, Mr McRae that the sort of violence that you engaged in, that is the armed robbery on the taxi driver, the home invasion, the attack upon Mr Branner, are serious matters.  They are so serious that it is my view that I do have to deal with you by way of a disposition which does involve a form of custody.  But I am satisfied also that because of your age, your vulnerabilities, your good prospects for rehabilitation, and because of the parental gaps in your life that have been present since you were in your early teens that it is more appropriate that I deal with you, both for your own benefit and for the benefit of the community in the long term, by having you placed in a Youth Justice Centre.

31The report that I received from the assessing officer was an extremely positive one.  I think you should be proud of yourself, Mr McRae, in the way in which you presented yourself in that interview.  Unfortunately, the situation often is that when young people have been held for a period of time in adult custody, Youth Justice authorities may be ever more reluctant to take you into a Youth Justice facility simply because they have spent as much time as you have in adult custody, and also it is difficult when you present as you do, as a very tall young man, who has engaged in multiple acts of violence.  But it would seem that you have been extremely honest and open with the assessing officer, that you have shown insight into your offending and you have expressed very positive attitudes about what you want to do with your future. 

32In other words, what I am saying, Mr McRae, is that I have got no doubt that when Mr Bell first came to see you he would have thought before he spoke to you that it was unlikely that you would be found to be an appropriate person for Youth Justice Centre.  But you have presented yourself, I think, in a way that probably your mum would have been very proud of.  It is quite clear that she brought you up to be hopefully a law-abiding young man, and really, in the circumstances, your criminal offending, as I have said, did not begin until the problems, right at the end of the terrible medical problems faced by your mother and after her death when you were living in very isolated and lonely, traumatic circumstances. 

33It is my view that it is imperative that the medical problems you face be treated and are more appropriately going to be treated in Youth Justice Centre.  You should be able to keep playing footy, if I can put it that way.  It is quite clear that, as I said, you are talented artist, that you have a number of attributes, that is you have got a number of talents, Mr McRae that need to be developed, and it seems more appropriate, particularly given your young age, that this be dealt with by way of Youth Justice, rather than the more punitive scenario of adult gaol.

34It is not easy, being a young person and a young Aboriginal person, to lead your life in a positive way in the fairly limited services offered by the MRC, and it is very much to your credit that you have been able to do this, and again, it is an indication to me that in an appropriate structured setting you have got a lot going for you and that this should be encouraged. 

35I am therefore going to deal with you by placing you in a Youth Justice Centre.  Now, you must have understood, Mr McRae, from the last couple of times you came in court before me that I was always going to have to deal with you, because of the amount of offending you engaged in, the amount of violence, and it was serious violence, you really hurt a number of people, by putting you into some form of custody, but I have decided in all the circumstances because of your youth, your remorse, and I accept that you are extremely remorseful as evidenced both by your pleas of guilty and by the very impressive letter that you wrote - can I ask - did you write this letter, Mr McRae?

36OFFENDER:  I had someone helping me.

37HER HONOUR:  Did you do the writing, or did someone do the writing?

38OFFENDER:  Someone done the writing, but I was putting the words in there

39HER HONOUR:  Okay.  Well, I am satisfied you are remorseful, that you do have insight into your offending, and that as long as you can learn to manage things like alcohol and drugs, and you have got to be careful, if you end up back in Echuca, ice is everywhere in Echuca, and we spoke about this last time, it is very important you understand just how devastating drugs are going to be to your future.  You have got a lot going for you, and you can have a very good future, but you have got to get your head around the problems of alcohol, and you have to understand that if you give in to people using ice when you go home to Echuca, you are going to end right back in front of me again.  All right?  And that is going to mean that your boy is not going to see you for a number of years.  The alternative is, you can go out, you can live with Janet, you can live with Durrant and have a good life.  It is up to you.  But I am hoping that time in a Youth Justice Centre will give you a kick start to that eventual future.

40So I have therefore decided that I am going to sentence you as follows: 

41On Charge 1, on Indictment D13811794, I sentence you to 12 months in a Youth Justice Centre; on the charges contained in Indictment D201408643, I sentence you to 15 months in a Youth Justice Centre as an aggregate sentence; and in relation Indictment D13515445, I sentence you to an aggregate term of 14 months.  The base sentence will be the sentence imposed in relation to Indictment D201408643, that is 15 months.  I order that six months of the sentences imposed on D13811794 and D13515445 be imposed cumulatively to the sentence imposed in relation to Indictment D201408643 and each other.  That will give a total effective sentence of 27 months in a Youth Justice Centre.  I declare that 236 days of the sentence have already been served by way of presentence detention.

42Mr Bell, can I ask you, that that will give Peter enough time to be settled into Youth Justice Centre?

43MR BELL:  I think so, Your Honour.  I think the positive here is it's one step closer to Echuca and his family so (inaudible) he won't have any problems with financing phone calls and (inaudible) but I have no doubt that they will (inaudible) the appropriate services to (inaudible).

44HER HONOUR:  Yes, thank you very much.  Your report was extremely helpful and very well written.  It was most helpful, so I thank you very much indeed for that and for your assistance in that respect.

45All right.

46MR PLUMMER:  Sorry, Your Honour, there's some summary charges that may need to be dealt with.  Your Honour referred to the indictment matters.

47HER HONOUR:  Yes.  The state false name to police - - -

48MR PLUMMER:  And resist police.

49HER HONOUR:  - - - and he failed to appear.

50MR PLUMMER:  Failed to answer bail, yes.

51HER HONOUR:  In relation to each of those, I will fine Mr McRae $100 on each, and that will probably be converted into an extra day or two, for Youth Justice, I think the best way of doing that.  I know there may be some trouble in relation - just going back to Indictment D13515445, I am a little bit worried about doing an aggregate sentence there, Mr Plummer, because they are not entirely related.  They are in relation to the other two, but the third indictment is more of a mixed bag really, isn't it?

52MR PLUMMER:  That's the aggravated burglary, is it?

53HER HONOUR:  Yes.

54MR PLUMMER:  Yes, there's two.  There's the robbery in early September.  Sorry - - -

55HER HONOUR:  That relates to the second indictment, and that all arises out of the attack on Mr Branner, but all right, I will do separate sentences in relation to that third indictment. 

56So that on the aggravated burglary, I will give him - he will get 10 months, one month on each of the four thefts, and I will do another 10 months on the burglary and two months on each of the charges of intentionally causing injury and reckless causing injury.  The base sentence will be the sentence imposed, the 10 months on the burglary, and I order that two months of the sentence imposed on the aggravated burglary and one month of each of the injury charges be served cumulatively to the sentence imposed on the burglary, giving a total effective sentence of 14 months in a Youth Justice Centre.  And then the accumulation between the three indictments will occur as I stated.  That is that the base sentence will be the 15 months imposed on the second indictment, D201408643, and that six months of the sentences imposed on the other two indictments will be served cumulatively to the sentence imposed on the base sentence giving a total effective sentence of 27 months.  Does that work, Mr Plummer?

57MR PLUMMER:  I think on that indictment it does, Your Honour.  Just a query regarding Indictment No. 643 - - -

58HER HONOUR:  Yes.

59MR PLUMMER:  The theft is not related to - sorry - yes, Indictment No. 643, there's the theft in early February which is not related to the armed robbery of the taxi driver.

60HER HONOUR:  All right.  What I will do is I will give an aggregate sentence in relation to the robbery and recklessly cause serious injury of 14 months - - -

61MR PLUMMER:  Sorry, Your Honour, I got that wrong; it's the robbery and reckless serious injury in Fitzroy, not the taxi driver.

62HER HONOUR:  No, that's the armed robbery.

63MR PLUMMER:  Yes, I got that wrong, so it's Indictment 643, but it's the theft in February and then the robbery and the serious injury in March.

64HER HONOUR:  So I need to do a separate sentence for the thefts.

65MR PLUMMER:  Yes, Your Honour.

66HER HONOUR:  So I will impose an aggregate sentence on 643 of 14 months, on the robbery and recklessly cause serious injury, and I will impose two months - sorry, one month - no, I will impose 15 months for the robbery and recklessly cause serious injury as an aggregate, one month on each of the thefts, and they will be served concurrently and the total effective sentence there is 15 months in a Youth Justice Centre.  Okay?

67MR PLUMMER:  Yes, Your Honour.

68HER HONOUR:  All right.  Thank you.

69Pursuant to s.6AAA, I declare that had you not pleaded guilty I would have sentenced you to an adult term in relation to the entirety of the sentencing, I would have sentenced you to an adult term of imprisonment and I would have ordered that you serve - would have sentenced you to a term of three years and ordered that you serve a minimum term of two years.  Okay?

70MR PLUMMER:  Just the orders as well, Your Honour.  I'm not sure if you've got to that.

71HER HONOUR:  Yes, the orders, thank you.

72MR PLUMMER:  There's a retention of forensic sample order and a disposal order, Your Honour.

73HER HONOUR:  Yes.  No, I think this is one of those cases. 

74All right.  Do you understand basically what's happened, Mr McRae?  Stand up, please, sir.

75You are going to Youth Justice, all right?  And you just need to keep your nose out of trouble, Mr McRae, and it will all be okay; all right?

76OFFENDER:  Yep.

77HER HONOUR:  Do you reckon you can manage that?

78OFFENDER:  Yep.

79HER HONOUR:  What do you reckon you have to do to manage that?

80OFFENDER:  Ah, exercise.

81HER HONOUR:   What about when you get out, what do you have to be careful of?

82OFFENDER:  Um, alcohol, and drugs.

83HER HONOUR:  Did you understand, as I understand it, you know, ice-wise things are pretty bad up in Echuca, and you're just going to have to be really aware of that and make sure you stay off it; all right?

84OFFENDER:  Yep.

85HER HONOUR:  Good on you.  Have a seat.  All right. Done.  All right.  You can be taken down, Mr McRae.  Thank you very much.

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