Director of Public Prosecutions v Mulcahy
[2013] VCC 1328
•24 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00778
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JARROD MULCAHY |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 July 2013 | |
DATE OF SENTENCE: | 24 September 2013 | |
CASE MAY BE CITED AS: | DPP v. Mulcahy | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1328 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N. Resstel-Pires | |
| For the Accused | Mr K. Doyle |
HIS HONOUR:
1
You have pleaded guilty to an indictment charging you with recklessly causing serious injury and damaging property. Both offences occurred on
24 December 2011. You have also admitted a number of prior convictions and court appearances going back a number of years, but the last of which occurred on 14 November 2006.
2 The prosecution, on 18 July, when this matter last came before me in Bendigo, tendered and relied upon a summary of prosecution case which was read, and I incorporate that document in its entirety into these reasons for sentence. I am not going to read it again.
3 Suffice to say that on the night of 24 December 2011, or rather in the early hours of the morning of that day, you went to a property in Kyabram and you assaulted a female who was at that address on the occasion. She was struck with a chain, punched and kicked while she was on the ground and you and your other assailants caused her some serious injuries. She was in hospital for two days and she received a number of fractures including fractures to her neck. You also damaged a Ford sedan, smashed windows of the house, entered the house and smashed the contents, including electrical items, ornaments and the like, causing a total amount of damage of about $30,000.
4 The offending was very serious and would ordinarily require me to impose a term of imprisonment. However, your counsel relied on a bundle of documents which became Exhibit 1 on the plea. They include a psychological report by Pamela Matthews, psychologist, dated 24 June this year; a report from Golden Valley Health, dated 29 April this year; a report from Relationships Australia, dated 29 April this year; a letter from Lyn Russell of the organisation Navigating Life, dated 23 April this year; a letter from Navigating Life, dated 20 June 2012; a report of Anthony Colmar, Primary Care Connect, dated 25 April this year; a letter from Joseph Matthews, psychologist, dated 27 June this year; and a Department of Human Services report, dated 9 January 2005.
5 There were also a number of references tendered on your behalf. I am not going enumerate all of those, but they show that you are capable of working and working well. They show another side to you, a side as a family man, and you of course are the father of a young daughter who obviously is a major responsibility for you. Your partner has written a letter, dated 17 July this year, which speaks very highly of you and suggests that she believes that you have the capacity to settle down and work and provide for your family.
6 The report of Pamela Matthews helpfully sets out a good deal about your background. I am not going to go into that in detail. Suffice to say that you have obviously had difficulties to contend with and you are mildly intellectually disabled. It was her opinion that that contributed significantly to your offending conduct in that it made you more susceptible to the influence of others and also your substance abuse has contributed to your offending conduct. However, it must be said that given your background and given your criminal history you have done pretty well over the last several years.
7 I have not seen many people with the difficulties you have had with the ability to turn things around to the extent that you have done since 2006. All of which suggests that your prospects of rehabilitation are reasonably good, provided you can stay away from drink and drugs and provided, hopefully, that you stay away from some of the friends or acquaintances that tend to get you into trouble.
8 I was provided by an indication from the prosecution on the last occasion that a community corrections order was regarded as being within the range of appropriate sentences. On the strength of submissions made on your behalf and as a result of the attitude of the prosecution, I sought and obtained an assessment report from Community Corrections who, as I have indicated, provided me with a written report dated 18 July this year which recommended that you be deemed suitable for a community corrections order. They have, as I say, recommended that that order be subject to a number of conditions, including a Justice Plan, and I have been provided, as has your counsel, with a report, dated 29 August this year, setting out the proposed Justice Plan. That report indicates that you should engage with case management from Disability Client Services at the Department of Human Services during the period of the order, which would be two years, and that you engage in, amongst other things, services designed to assist you with anger management and other services designed to reduce the likelihood of you re-offending. Those no doubt will be the subject of discussion between you and those who manage the Justice Plan and the community corrections order.
9 I propose, subject to your agreement, to make the order for a period of two years. That would require you also to perform 100 hours of unpaid community work. I appreciate that you will have to work that in around your work schedule, and you will also have to work around your work schedule with Community Corrections, Department of Human Services, to ensure that you participate in such other programs as they direct. All right?
10 PRISONER: Yes.
11
HIS HONOUR: I am going to have the order drawn up in a moment.
Mr Doyle, are you satisfied that your client understands enough of the terms of the order that he can sign up to that order?
12 MR DOYLE: Yes, I am, Your Honour. Before the plea this type of disposition was discussed with him in general terms. I had a brief chance to explain it to him on the video link beforehand and I note, Your Honour, that he did sign the consent document as well.
13 HIS HONOUR: He did, yes.
14 MR DOYLE: I do not understand him to have any difficulties with the conditions, Your Honour, and his obligations under the order.
15 HIS HONOUR: Yes, all right. I will get Mr Travers to draw up the order. Which Community Corrections Centre will it be? It may be referred to in the order or an assessment report?
16 MR DOYLE: Bendigo, Your Honour.
17 HIS HONOUR: Bendigo?
18 MR DOYLE: It says in the proposed document.
19 HIS HONOUR: The order will require you to report to Community Corrections in Bendigo within two clear working days of today. Is that going to present any difficulty to you?
20 PRISONER: Like, what do you mean, like?
21 HIS HONOUR: You will have to go to Bendigo Corrections.
22 PRISONER: Like in the next two days?
23 HIS HONOUR: Yes, and report to Corrections.
24 PRISONER: Yeah.
25 HIS HONOUR: Can you do it?
26 PRISONER: Yeah, and what after that?
27 HIS HONOUR: They will tell you what to do after that.
28 PRISONER: Yes.
29 HIS HONOUR: Yes, all right. I just wanted to make sure that it was possible for you to do it.
30 PRISONER: Yeah.
31 MR DOYLE: It should be open to him to do that this afternoon, because he is in Bendigo.
32 HIS HONOUR: This afternoon? All right, yes, well you can do it this afternoon if you wish to. That would be good.
33 PRISONER: Yeah, that would be great.
34 HIS HONOUR: Yes, all right. I am just going to read a few other things to you so that you understand exactly what you are getting into.
35 PRISONER: Yes.
36 HIS HONOUR: During the term of the order you must not commit an offence punishable by imprisonment, all right?
37 PRISONER: Yeah.
38 HIS HONOUR: You must comply with any obligation or requirement prescribed by the regulations. They will be explained to you.
39 PRISONER: Yeah.
40 HIS HONOUR: You must report to and receive visits from the Secretary of the Department of Corrections or his or her nominee.
41 PRISONER: Yeah.
42 HIS HONOUR: You must report to the Community Corrections Centre in Bendigo within two clear working days. Well we have just discussed that, you can do that this afternoon, but it will have to be done within two clear working days or else you will be in breach of the order immediately, do you follow?
43 PRISONER: Yeah.
44 HIS HONOUR: You must notify the Secretary of the Department of Corrections of any change of address or employment within two clear working days after the change. You must not leave Victoria unless you get permission from the Corrections officer that is dealing with you and you must comply with any direction given by the Manager of Community Corrections that is dealing with you, do you follow?
45 PRISONER: Yeah.
46 HIS HONOUR: All right, and I have referred you to those other terms and conditions which will be part of the order and they can be spelled out for you in just a minute.
47 PRISONER: Yeah.
48 HIS HONOUR: I guess the best way of dealing with it, Mr Doyle, is to have the document faxed up to Mr Mulcahy.
49 MR DOYLE: Yes, Your Honour.
50 HIS HONOUR: Get him to sign it.
51 MR DOYLE: Yes.
52 HIS HONOUR: It can then be faxed back. I will sign it.
53 MR DOYLE: Yes, Your Honour.
54 HIS HONOUR: Then the order will be in proper form.
55 MR DOYLE: Yes, Your Honour.
56 HIS HONOUR: I will leave the Bench whilst that is going on I think. Actually we are just about to start another matter, but I will leave the Bench shortly and then return and deal with the other matter.
57 MR DOYLE: Yes.
58 HIS HONOUR: If you can just hang around long enough to ensure that we get all the formalities sorted. I think there were some applications, were there not, for some ancillary orders?
59 MS RESSTEL-PIRES: Yes, Your Honour. There is a 464 forensic sample application and a forfeiture order for the firearm.
60 HIS HONOUR: Yes. Yes, thank you. One of the orders that I have been asked to make, Mr Mulcahy, is an order that you undergo a procedure for taking a scraping from your mouth, or providing a blood sample. The order that I propose to make will require you to report to the officer in charge at Shepparton?
61 PRISONER: Yeah.
62 MS RESSTEL-PIRES: Yes. The address I have got for Mr Mulcahy is in Numurkah and Shepparton is the closest.
63 HIS HONOUR: Shepparton I think is the closest police station for you and that is at 174 Wellsford Road, Shepparton.
64 PRISONER: Yeah.
65 HIS HONOUR: When you get there you will have to undergo a procedure by a scraping from the mouth, all right?
66 PRISONER: Yeah.
67 HIS HONOUR: You will have to do that within four weeks of today basically.
68 PRISONER: Yeah.
69 HIS HONOUR: Again that will not pose any problems to you?
70 PRISONER: No.
71 HIS HONOUR: I will make that order. I have to inform you also that if when you are requested to provide a scraping from the mouth, you do so, that is all you need to do. If you fail or refuse to provide a scraping from the mouth then the officer making the request may take a sample of blood from you instead of the scraping from the mouth and use reasonable force in order to do that. I am sure you will not put them to that trouble, but anyway I need to warn you about that, do you follow?
72 PRISONER: Yes.
73 HIS HONOUR: All right, well I have signed those orders in triplicate and I ill provide those to you. Yes, that looks satisfactory. I will just hand it out to counsel also to check. If you are satisfied with it, it can be transmitted to Bendigo and signed.
74 MR DOYLE: Yes, Your Honour.
75 HIS HONOUR: I will just leave the Bench temporarily whilst that is all being done.
76 (Community corrections order signed and acknowledged.)
77 (Section 464ZF order signed and acknowledged.)
78 (Forfeiture order signed and acknowledged.)
79 (At a later stage.)
80 There is one order I failed to make, that is an order pursuant to s.6AAA of the Sentencing Act. I declare that but for you plea of guilty, Mr Mulcahy, I would have sentenced you to imprisonment for a period of two years with a non-parole period of 15 months.
81 PRISONER: Yeah.
82 HIS HONOUR: I understand you have signed the orders, is that right?
83 PRISONER: Yes.
84 HIS HONOUR: Yes. That will come back and it will be signed by me. If you then go off to the Corrections Centre you will be well on the right road.
85 PRISONER: All right.
86 HIS HONOUR: All right, do that this afternoon.
87 PRISONER: Thank you.
88 HIS HONOUR: Very good, thank you. You are excused from the Bar table.
89 MR DOYLE: Thank you, Your Honour.
90 MS RESSTEL-PIRES: Thank you, Your Honour.
91 PRISONER: Thank you.
92 HIS HONOUR: Thank you.
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