Director of Public Prosecutions v Mulcahy
[2013] VCC 1448
•1 October 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-101687
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KATIE MULCAHY |
---
JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 1 October 2013 | |
CASE MAY BE CITED AS: | DPP v Mulcahy | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1448 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Moore | |
| For the Accused | Ms M Walker |
HER HONOUR:
1 Ms Mulcahy, what I have to do it is because this is a County Court, I have to give reasons for my sentence so this is going to take a little while. I have to talk about the offending and I have to talk about why I'm going to sentence you the way I am, all right? So you just remain seated until I tell you to stand, okay?
2 Katie Mulcahy, you have pleaded guilty before me to one charge of attempting to cause serious injury intentionally, one charge of common law assault, one charge of theft and one charge of using a carriage way to harass, menace or cause offence.
3 The facts underlying your offending are set out in detail in the prosecution opening summary which is annexed it to my sentencing remarks.
4 In brief compass, however, you and the victim in this matter are former friends who had a falling out about three weeks before this offending occurred on 31 May 2013. Essentially you formed the belief that the victim was sexually involved with your boyfriend and had stolen an engagement ring which was later recovered, I think in your premises or your mother's.
5 In any event, you developed intense feelings of animosity towards the victim who had moved home from Kyabram to Echuca in the face of hostility which was evident from you and your friends.
6 However, she returned to Kyabram on the evening of 31 May, going to a local hotel where she was seen by a friend of yours who immediately rang you.
7 Telephone intercepts revealed text messaging between you and that friend essentially displaying an intention by you to attend and to stab the victim.
8 You armed yourself with a knife, which was taken from you by your then boyfriend but then secretly went and got another knife and attended at the hotel with your boyfriend and another young male.
9 At about 12.30 am on 1 June, you arrived at the hotel, basically followed the victim around, and she finally left the hotel and got into a car driven by your brother‑in‑law. At that stage you approached the car and forced your way in, despite the victim's attempts to keep you out, and you then took the knife and tried to stab her in the neck, the ribs and the upper thigh. However, the knife did not penetrate the skin. Your attempts to stab the victim, underlie Charge 1, attempting to cause serious injury intentionally.
10 The victim managed to get the knife off you and you continued to attack her, kicking her and punching her while on top of her until you were dragged off by one of the young men who had come with you.
11 During the assault you also stole the victim's mobile phone, which you took with you, leaving the scene in your boyfriend's car, your boyfriend having unsuccessfully tried to retrieve the knife which you had left in the car the victim was in, and returned home.
12 Meanwhile the victim and her friends went to the Shepparton police where the matter was reported and the knife handed over.
13 The victim suffered a blood nose, bruising to her nose and the left‑hand side of her face, bruising to her right thigh and minor scratches.
14 After returning to your home address, you used the victim's mobile phone to get into her Facebook account and thereafter uplifted a series of nude and semi nude photographs of her on to different Facebook sites, including the Kyabram buy, swap and sell and the Shepparton buy, swap and sell so anyone using those sites could see these photographs. You also sent the same photograph to members of her family via text message.
15 Your actions in kicking and punching the victim underlie Charge 2 on the indictment, common law assault, your theft of the phone underlies Charge 3 on the indictment, theft, and your actions in relation to uplifting the photographs of the victim underlie Charge 4, using a carriage service essentially to cause offence.
16 You were arrested by police at your home on 5 June where the mobile phone was located on a coffee table and in an interview with police you stated that you followed the victim around the pub because you were going to bash her, that you were thinking you were going to stab her when she walked over to the car, that you had a knife in order to stab the victim, that you kicked and stabbed her a few times and stabbed her inside the neck, that you stated at one stage your intention was to kill the victim because she deserved to die but then said you didn't think you wanted to kill her but that you wanted to stab her.
17 You admitted taking the phone and you admitted kicking it the victim in the face and punching her. You also admitted up loading the naked photographs of the victim saying she was, "A pig and she deserves it".
18 You were then charged and remanded in custody where you have remained ever since.
19 This matter proceeded by way of a straight hand‑up brief plea of guilty at the committal mentioning on 4 September 2013. It was conceded by the prosecution that you had entered a very early plea.
20 I now turn to your personal circumstances.
21 You are 20 years of age. You are one of nine children. You have a twin sister. You completed Year 11 at a community school and thereafter undertook a number of courses designed to get you employment in the beauty industry. You have had a number of short‑term jobs, essentially in pizza shops and Thai restaurant and in various shops in the Kyabram area.
22 You have lived with your boyfriend since you were 15.
23 Of significance to the court is the information that about two months before this offending, you became friends with another girl who was going out with a boy that you knew and were introduced to the very dangerous and addictive drug methylamphetamine which you began using on a daily basis. You also were drinking alcohol on a daily basis, leading up to this offending and indeed on the night of this offending, had apparently consumed an amount of alcohol.
24 Unsurprisingly, along the way, it seems you developed depression problems, which is often the case with ice users. It also seems, according to the psychiatric report tendered on the plea from Dr Anthony Cidoni, that you fairly quickly developed psychotic reaction to this drug, reporting hearing voices and feeling paranoid. As I remarked to you during the plea, Ms Mulcahy, there could be no clearer indication that you are particularly unsuited to using this drug which usually causes damage after heavy use over a long period of time. You, however, developing the sorts of very adverse reaction that you did in a remarkably short period of time. I can confidently predict that if you keep using ice, you're going to end up in a psychiatric institution on a long‑term basis and that is probably pretty much going to be your future if you do not give this drug away entirely.
25 The court deals with large numbers of people using methylamphetamine. It is a drug that very often leads people to offend, usually violently, as has been the case here. People develop paranoia. Long‑terms users of any amphetamine‑based drug very often end up with schizophrenic illnesses where they fear the world around them and live in a state of constant paranoia, suffer delusions and hear voices, many of them extremely unpleasant and menacing. This can be a permanent and long‑term affect of the use of that drug and, as I have said, the early indications are, from your limited use of it, that you are particularly vulnerable to developing those terrible side effects and I hope you understand that.
26 In addition, just before this offending, you had been confronted by your family, in particular your sister and your mother who were extremely concerned that you were using methylamphetamine. You had been living with your mother in Bendigo but had moved to Kyabram and become involved in what seems a fairly incestuous and poisonous sort of circle of girls all concerned that victim, in what seems to be some sort of marathon of sexual activity, was sleeping with all the boyfriends.
27 May I make the comment, if that was the case, it is a shame that your anger was not turned by you girls against your boyfriends rather than this particular girl.
28 In any event, you and the young woman who had introduced you to ice, had, some time before this particular offending, visited the victim's home where she lived with her mother in Echuca, and engaged in an amount of criminal activity involving criminal damage and threatening words, and so forth, and apparently this offending is still to be dealt with in the Magistrates' Court although the other girl you went with has pleaded guilty to a number of charges including criminal damage and generally threatening behaviour and has been placed on a Community Corrections order.
29 In any event, it appears that gaol has been extremely difficult for you. It was the opinion of Dr Cidoni that you are now in the throes or in the middle of a major depressive disorder. I was given a copy of a number of formal requests made by you whilst in gaol to see a psychiatrist. Unfortunately it is very difficult to get that sort of attention in gaol. There were a number of results of your urine analysis carried out on the random basis while you were in gaol and they have all proved negative and I am satisfied that the time in gaol has been useful for you in one sense in that clearly you have not been able to use illicit substances or to use alcohol this is extremely important.
30 In the meantime, however, you have also, I am satisfied, used your time as gainfully as you can, whilst on remand. Remand is a difficult place for prisoners to be particularly productive as there are not a lot of programs available but it seems you have undertaken what you could and your counsel informs me that you have tried to keep to yourself and keep your head down and stay out of trouble.
31 It was certainly Dr Cidoni's view that your depression would have made your time in gaol more difficult than for the ordinary prisoner and I accept that that is the case.
32 You were accompanied in court by your mother, your sister and your brother. I received a number of letters from members of your family and from friends of the family who all speak of you as ordinarily a very kind, good natured and loving girl. The way you were behaving, up to the time of your offending and indeed the way you did behave on this occasion, seems to entirely out of character. It was an extremely violent attack and it just seems it was more by good luck than by design that you did not do your victim serious damage and really, when you think about it, if the knife had been a more appropriate weapon for what you were setting out to do, you could have killed her and if you had done that, Ms Mulcahy, you would have been looking at something like a minimum of 15 years in gaol. So you bear that in mind the next time you get involved in the sort of hot house of gossip, invective and poison and combine that with drugs and alcohol. It could have been the end of your young life. You could have been in gaol and got out at a time when you may well have been at an age where it was difficult to have children, all of that could have been denied to you because of this terrible situation you got yourself involved in very quickly over a short period of time.
33 I am satisfied, however, you have extremely remorseful for your offending. You were very open with police, although a great deal of what you had to say did not do you any credit. Nevertheless, you do not strike me as a particularly calculating offender. I am satisfied that what you did do was an impulsive act brought about by the sorts of factors I have already outlined. It is not something you have done before. You seem to be a young woman of reasonably good character although perhaps not terribly good decision‑making powers. You have got lots of support. You are someone who has got a good future if she wants to have it.
34 You are also only 20 and for the purposes of the Sentencing Act, are a young offender so that aspects of rehabilitation have a greater part to play in the sentencing exercise before me than if you were an older offender.
35 It was put to me by the prosecution that I should deal with you by way of sentence of imprisonment to be immediately serve and a range was given, the lowest of it resulting in minimum term of eight months.
36 In my view, you have got drug and alcohol issues and psychological issues that need attending to and in terms of the rehabilitative advantages that I find that you have, which link to the good of the community as a whole, it is my view that I should deal with you by way of an order which will ensure you receive the attention that you do require for the problems that led you into this appalling offending in the first place.
37 I should add that I received a victim impact statement. It is quite clear that your victim, like most victims of very nasty violent offending, continues to suffer the emotional damage that often lasts well after the physical damage has healed and fortunately for you, the physical damage you inflicted was not very great.
38 But this girl writes in her victim impact statement that she is constantly waking during the night due to nightmares. If she sees anyone on the street who looks similar to you, she cries and runs home, she doesn't go out or catch up with friend very often any more. She constantly feels unsafe. She feels unable to work. She is suffering depression for which she is on daily medication. She says she is going to counselling sessions to try and help but it does not seem to work as yet. Her life is pretty terrible at the moment and will probably continue to be pretty terrible for a fair while and that is what you have done to another human being and I can assure that if someone had launched the same attack on you, you would be feeling the same way.
39 So I am satisfied that this whole terrible incident has been a huge lesson for you, a very unpleasant lesson but nevertheless a lesson and something from which you have learned and it is my view that I should deal with you by way of an order which ensures that those lessons continue to be learned by you and that you learn to get a few insights into your own behaviour, your own personality and learn to manage yourself better.
40 I am instructed by your counsel, that the relationship with your boyfriend has effectively ended. I think, for what it is worth, that is a good thing.
41 One of the matters that I did not read out of the prosecution summary was that your boyfriend was apparently keen to attend this incident to watch. That is not to his credit at all.
42 I am also informed that he is now facing fairly serious charges involving assault, trafficking and possession of methylamphetamine. He sounds like the last sort of person, even though you have been with him since you were 15, that any responsible mother would want her daughter to be with. He has not visited you at all while you are in gaol which, with respect, speaks volumes about him, and sticking by you in a hard time when it is not fun any more and you have assured me from the dock that it is over. I certainly hope, for your sake, that it is. You have been with him since you were 15 and, really, it sounds as if enough is enough, if you don't me making that comment.
43 In any event, the way I propose to deal with you is by imposing a term of imprisonment upon you and then ordering that you be released on a Community Corrections order.
44 Now, you have been in gaol now for 117 days and I have to go through the particular charges and I will do that, but the effect of my sentence will be that you will serve a further two months' imprisonment. I am going to impose a sentence of three months and order that one month of that sentence has already been served by way of pre‑sentence detention.
45 On your release in two months, you will go back to your mother and, as long as you consent, will then be placed on a Community Corrections order come, even though is sounds terribly unpleasant, Ms Mulcahy, it could also be your salvation, all right?
46 You are going to have to undergo some psychological counselling which will be very good for you, will probably help you a lot in dealing with your depression, will help you in managing your life and give you some insight into yourself. Early 20s are not the easiest time in a person's life and you have certainly gone into your early 20s with a bang.
47 I am sure, in the end, if you is stick to the order, that you are going to be okay and that you will be able to put this behind you but I need to tell you that whilst you are on this Community Corrections order, which is going to last for 18 months, should you consent to it, I am going to order that you come back and report to me every six months.
48 Ordinarily I get a written report every three months but I think it would be more effective if you know that you have to come back and see me and tell me what is going on on a six‑monthly basis. I think a little bit of concern about coming to court will help you stick to the order because I am going to be very unimpressed if you do not stick to it and I have already told you, if you breach the order, and I will explain the conditions of it to you in a moment, I will re‑sentence you on this offending, okay?
49 The way I am going to sentence you is as follows, could you stand up, please. On the charge of attempting to cause serious injury intentionally, I am going to sentence you to three months' imprisonment and then order that you be released on a Community Corrections order for a period of 18 months.
50 On the charge of common assault I am sentencing you to one month imprisonment. On the charge of theft, I am sentencing you to one month imprisonment and on the charge of using a carriage service to harass, menace or cause offence, I am sentencing you to three months' imprisonment. That was a very nasty piece of offending. It was a spiteful and malicious and I have got no doubt caused massive shame and embarrassment to your victim.
51 The orders will be served concurrently. I am ordering that one month of that sentence has already been served by way of pre‑sentence detention.
52 However, I do need to speak to you about the conditions of the order.
53 In explaining the conditions I note that you have been assessed as suitable for the Community Corrections order. You have been assessed as a low risk of re‑offending. The fundamental conditions of any Community Corrections order are that when you are placed on the order you must report to your Community Corrections office within two clear working days. So once you get out of gaol, within two days of that, two working days, that means during the week day, so, say if you get out on a Friday, that means you will have to have reported by the following Tuesday, do you understand? If you get out on a Monday, you will have to have reported by the Wednesday. That is how it works. Anyway, Ms Walker will explain that to you.
54 The address and phone number of that Community Corrections office will be provided to you.
55 Whilst you are on the number you may not commit another offence punishable by imprisonment, whether inside or outside of Victoria. That does not mean you have to go to gaol. It means you simply have to be convicted of an offence for which you could go to gaol, theoretically. So if you knock off a bottle of nail polish from Coles, theoretically, you could go to gaol for that and that would constitute a breach of the order. Certainly assaulting anybody again would certainly bring you back before me, all right?
56 You may not leave Victoria whilst you are on the order without the permission of the Community Corrections officer. They are usually pretty reasonable but if you want to go interstate, you have to tell them, you have do get permission first. You must report to and receive visits from the Community Corrections officer. You must report any change of address or employment to the communities corrections office within 48 hours of that change of address or employment, do you understand.
57 So they are the core conditions.
58 I am going to order some special conditions on top of that. I am going to order that you perform 150 hours of unpaid community work. I am going to order that you attend and receive treatment for mental health issues. I am going to order that you be assessed and receive treatment for drug and alcohol abuse. I am going to order that you undergo an anger management course, that is the type of course to address re‑offending. I am doing that because it appears from Dr Cidoni's report, you have had a bit of trouble with anger in the past and it would be a good idea if you learn how to get that under control. All right? The lack of control of anger had a lot to do with this, when you combine with it drugs and alcohol and you can see the sort of trouble it got you into.
59 I am going to order that you come back before me every six months from today's date. So six months from now you will be coming back to see me, hopefully filled with good news about your wonderful ‑ no, actually, we will make it six months from the release date, all right? So that will be about eight months from now.
60 Hopefully you will come back, Ms Mulcahy, going, "Gee, my life's going well. I'm a different girl. Everything's fantastic", or at least say things are going better than they have been, all right?
61 I am going to order that you undergo any other offending behaviour program which the Community Corrections office regard as appropriate.
62 Now, you started an apprenticeship as well, didn't you.
63 PRISONER: Yes.
64 HER HONOUR: It would be nice if you could have a go at trying to get into that again and see if the Community Corrections office can help you with that, all right? Rather than this excessive dependence on boyfriends, which seems to have been all the go in Kyabram, you try and carve yourselves out your own living if your own career.
65 PRISONER: Yep.
66 HER HONOUR: So you can look after yourself a bit better. So if you think the rumour gets around some ghastly girl is trying to sleep with your boyfriend, you can have a calm discussion with your boyfriend about it and not turn it into the sort of ridiculous activity that led you here in the first place. You are not a young woman who should ever have ended up in the Dame Phyllis Frost Centre or before this court.
67 Do you agree to enter the order?
68 PRISONER: Yes.
69 HER HONOUR: I order that there be a condition of supervision as well. So it's going to be pretty intense but you're a young woman who's been able to live life fairly well and sensibly before now. I don't think you'll have any trouble dealing with that. If anything gets too hard, get on to Ms Walker and we can vary the conditions but I expect you to have a good go at them first, all right? Thank you.
70 Pursuant to s.6AAA I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of 15 months and order that you serve a minimum term of eight months. Thank you.
71 The application for a sample.
72 MR MOORE: Matter of discretion, Your Honour.
73 HER HONOUR: Yes, she's a young woman. This is, I think, a bit of a one‑off, I hope. I don't think be need to get your DNA on the criminal database just yet.
74 I am going to sign a disposal order. I'm afraid you're never going to get that knife back, Ms Mulcahy. I hope it wasn't a family heirloom. Have a seat.
75 You are apparently going to get out on a Saturday which means you must have reported to the Community Corrections office by the following Tuesday. So you understand that?
76 PRISONER: Yes.
77 HER HONOUR: Ms Walker will talk to you about that, okay, and then six months after that, Ms Mulcahy, you'll be back to see me, all right? So we'll just get the order to you.
78 So the 18 months starts when you get out of gaol, all right? So it's going to be 20 months before this is all done. We'll get you to sign that, thank you, Ms Mulcahy.
79 All right, Ms Mulcahy, that's it. All the best. We'll see you in eight months' time. Ms Mulcahy, your family can see you out at Dame Phyllis. Thank you for your assistance, Ms Walker.
‑ ‑ ‑
0
0
0