Director of Public Prosecutions v Richard McDonald
[2022] VCC 197
•28 February 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-21-00644
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD MCDONALD |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 August, 9 December 2021 & 25 February 2022 | |
DATE OF SENTENCE: | 28 February 2022 | |
CASE MAY BE CITED AS: | DPP v Richard McDonald | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 197 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Attempted Armed Robbery, Criminal Damage, Breach Family Violence Intervention Order, Drive Disqualified, Commit Offence On Bail. Offences committed against estranged father. Serious victim impact. Mature offender, recent but relevant prior criminal history. Poor history of compliance on supervisory orders. Offender victim of serious violent offending himself, resulting in PTSD, escalating drug use by way of self-medication, psychosis and offending. Drug use exacerbating illness. Early plea accompanied by genuine contrition. Recent period of remand productive of greater insight and motivation to remain drug free. Merits of CCO as opposed to parole period.
Legislation Cited: Crimes Act 1958; Family Violence Protection Act 2008; Drugs, Poisons and Controlled Substances Act 1981; Criminal Procedure Act 2009; Road Safety Act 1986; Bail Act 1977; Sentencing Act 1991.
Cases Cited:R v Verdins (2007) 16 VR 269; R v Martin (2007) 20 VR 14; Morrison v The Queen [2012] VSCA 222; Akoka v The Queen [2017] VSCA 214; Sahhitanandan v The Queen [2019] VSCA 115; DPP v Heffernan [2014] VCC 1561; Pasinis v The Queen [2014] VSCA 97; R v Cotham [1998] VSCA 111; Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen (2014) 46 VR 308.
Sentence: 10 months imprisonment followed by 2 year CCO with conditions. Licence cancelled for 8 months to commence on date of release from custody. Section 6AAA Sentencing Act declaration – 3 years 2 months imprisonment, with a non-parole period of 22 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. Fargher | The Office of Public Prosecutions |
| For the Accused | Mr J. Kantor (Plea) | Ellinghaus & Lindner |
| Mr J. Dalziel (Sentence) |
HIS HONOUR:
Introduction
1Richard William McDonald, you have pleaded guilty to an indictment containing the following charges:
Charge 1: Attempted Armed Robbery, contrary to ss.75A and 321M of the Crimes Act1958. The maximum penalty for Charge 1 is a term of 20 years imprisonment.[1]
Charges 2 and 3: Damage Property with Intent, contrary to s.197(1) of the Crimes Act1958. The maximum penalty for Charges 2 and 3 is a term of 10 years imprisonment.
Charge 4: Contravention of Family Violence Intervention Order Intending to Cause Harm or Fear For Safety, contrary to s.123A of the Family Violence Protection Act 2008. The maximum penalty for Charge 4 is a term of five years imprisonment.
Charge 5: Possession of a Drug of Dependence, namely, Methylamphetamine, contrary to s.73 of the Drugs, Poisons and Controlled SubstancesAct 1981. The maximum penalty for Charge 5 is a term of one year imprisonment or 30 penalty units, noting the offending was not for any purpose related to trafficking.
[1]Charge 1 is not a Category 2 Offence pursuant to s.3(1) of the Sentencing Act1991 in these circumstances s.5(2H) does not apply.
2You have also pleaded guilty to the following Related Summary Offences (‘RSO’) transferred from the Magistrates’ Court pursuant to s.145 of the Criminal Procedure Act2009.
RSO 9: Drive Whilst Disqualified, contrary to s.30(1) of the Road Safety Act1986. The maximum penalty for this offence is a term of two years imprisonment or 240 penalty units.[2]
RSO 10: Commit Indictable Offence While on Bail, contrary to s.30B of the Bail Act1977. The maximum penalty for this offence is a term of three months’ imprisonment or 30 penalty units.
[2]Upon conviction for this offence, pursuant to s.31 of the Road Safety Act1986 the Court may cancel the registration of the vehicle connected with the commission of the offence (in this case your 2016 Toyota LC200 Wagon with registration 1OZ4US); and though disqualification period of your licence ended on 7 December 2020, pursuant to s.28(1)(b) of the Road Safety Act 1986, the Court may (a) suspend the Offender’s driver’s licence for such a time as the Court thinks fit; or (b) cancel the Offender’s drivers licence and disqualify the Offender from obtaining a driver’s licence for such a time as the Court thinks fit.
Background
3Your offending relates to an incident that occurred in the early hours of Friday, 9 October 2020, at the home of your 73-year-old father Ross McDonald, located at Mount Eliza.
4Your father’s home is a two-storey residential property, with an electric sliding gate at the front of the property and a driveway leading down from the gate up to the front of the house. Mr McDonald senior resided at the property with his wife, Catherine Jacques. At the time of the offending, both your father and Ms Jacques were asleep.
5At the time of the offending, you were 44 years of age. You were also:
a. the holder of a disqualified licence, your licence having been disqualified by the Melbourne Magistrates’ Court on 8 December 2019, for a period of 12 months;
b. subject to bail conditions imposed by the Melbourne Magistrates’ Court on 26 June 2020. The conditions of bail included a condition expressly prohibiting you from driving a motor vehicle;
c. you were serving a 12-month Community Correction Order (‘CCO’) that had been imposed by the Court on 8 December 2019; and
d. you were the subject of an Interim Family Violence Intervention Order in place for the protection of your father imposed by the Frankston Magistrates’ Court on 28 August 2020. You were served with a copy of that order the following day, and its conditions were explained to you by the Police who served the order on you. That order prohibited you from engaging in certain conduct, including:
§intentionally damaging any property of the Victim;
§approaching or remaining within five metres of the Victim; and
§attending or remaining within 200 metres of the Victim’s home.
The offending
Charge 2: Criminal Damage
Charge 4: Contravene Family Violence Intervention Order
RSO 9: Drive Whilst Disqualified
6At approximately 3:30am on Friday, 9 October 2020, you drove your 2016 Toyota Wagon, to your father’s home address. You brought a sledgehammer with you.
7When you reached the front of the property, you exited the car and struck the front gate with the sledgehammer in an attempt to break it. When that was unsuccessful, you drove your car into the front gate, causing the gate to break from the rail and fall onto the driveway. This caused the Victim’s dog to start barking, which woke both your father and Ms Jacques.
Charge 1: Attempted Armed Robbery
Charge 4: Contravene Family Violence Intervention Order
RSO 10: Commit Indictable Offence While On Bail
8Your father went downstairs and saw you standing at the front door, armed with a sledgehammer. He felt frightened and angry, and thought you were going to break down the door. He told Ms Jacques to call the police, which she did.
9The Victim opened the door to you and said “Rich, let’s talk.” You told him “Just give me the keys to your car. I’m taking your car and leaving mine.” Your father was aware that you were armed with the sledgehammer and was scared that you would smash the door, or attack Ms Jacques or his dog. In an effort to move you away from the house, he asked “What have you done?” and walked past you, out of the house.
10You followed the Victim out of the house, marching behind him down the driveway armed with the sledgehammer. You started verbally abusing him. You repeatedly told him that he was to blame for the poor state of your car, and so you were going to take his car. When you said this, were shaking the sledgehammer towards your father. He was scared that you were going to hit him with it.
11You, Mr McDonald began stomping on the ground while repeatedly shouting at the Victim “Just get your fucking keys!”. The Victim was frightened that if he didn’t get his car keys, you would come into the house where his wife and dog were.
12Your father ran into the house, grabbed his keys, and ran back outside again. When he ran out of the house, you marched up the driveway towards him, still armed with the sledgehammer, and said “Give us the fucking keys.” Your father tried to stall you by suggesting you both move the gate first. He was reluctant to give the you the keys as he was hoping police would arrive.
13Your father was so scared that if he turned away from you, that you would hit him with the sledgehammer, that he walked backwards away from the house, facing you as he went. You followed him down the driveway and out onto the road. You shouted at him “Give me the keys Ross or I’m going to fucking kill you!”
14Understandably, your father was scared that you would kill him and began backing away faster from you while suggesting you both talk. Your response to that suggestion was to swing the sledgehammer at the Victim while standing about two to three metres away from him.
15Your father tried to calm you down, saying “I don’t want your car, I just want you to get better.”
Charge 3: Damage Property with Intent
Charge 4: Contravene Family Violence Intervention Order
16Once you realised the Victim was not going to give you the car keys, you walked up to his car, a 2019 Toyota Land Cruiser, and in what can only be seen as an act of spite, struck the car once with the sledgehammer, causing damage to it. You then got into your own car and drove away.
Investigation, arrest and interview
17Police arrived at the Victim’s home in response to the ‘000’ call made by Ms Jacques a matter of minutes after you had left. Police obtained statements from your father and Ms Jacques and took photographs of the scene, including the damage to the Victim’s car.
18At 11.15am, some six hours after your attendance at your Victim’s home, police observed your car parked at the Ricketts Point Beachside Carpark on Beach Road, Beaumaris. Upon approaching your car, police saw you asleep inside the car, with the keys in the ignition and the motor running. The sledgehammer used in the offending was laying on the backseat of the car and was seized by police.
19You complied with all police directions, including to raise your hands, unlock the vehicle and slowly exit the vehicle.
20You were placed under arrest, cautioned and informed of your rights. You were conveyed to Frankston Police Station. While travelling to the station, you were very emotional and told police about past events, including losing your business. You also made admissions to attending the Victim’s address in the early hours of the morning and damaging his vehicle with a sledgehammer.
21At the station, you participated in a recorded interview with police in which you made numerous admissions to the offending. During the course of the interview, you stated:
a. You didn’t have a valid driver’s licence and your licence was disqualified last year as a result of driving while suspended (Q87–93);
b. You were not allowed to be at your father’s residence because there was an intervention order out in place. You knew the conditions of the order included a condition that you not go near your father, that you were not allowed within 200 metres of your father and that you can’t damage any of his property. You told police you knew you broke the order last night (Q100–111, 120–122);
c. You initially denied being drug or alcohol effected at the time of the offending (Q188);[3]
[3]Though it seems inevitable you were so effected, having even told the CCO assessor as much – see Exhibit 17: Extended Pre-Sentence Report dated 19 October 2021, p. 2.
d. You told police that prior to the offending people were “messing with my car and being antagonising” (Q55). You told police you thought your father was “involved…in some way with what’s going on to me and the constant, you know, people antagonising me.” (Q67) You told police that people wrecked your car, but said “they’re smart and they’re mechanical engineers so you won’t find any damage to my car now” (Q67);
e. You admitted to driving to your father’s house and yelling for him to come out. You said you shouted “If you don’t come out in a few minutes I’m going to bash the gate down”. When your father didn’t come out, you “bashed” the gate with the sledgehammer, then pushed the gate, then drove your car into the gate, which caused it to fall down. You told police the gate fell down and there was damage to two of the slats (Q67);
f. You acknowledged that your father came out because of the noise. You claimed you were asking your father to help you with your car. You said you told your father, “Dad, I’m here to swap cars because mine’s fucked and yours is perfect and they’re the same” (Q67);
g. You admitted to grabbing the sledgehammer and telling your father to “Go get a key…Give me the keys to your car” (Q67);
h. You denied threatening your father, but admitted that “my stature and the way I was [was] threatening” (Q67);
i. You admitted that when your father didn’t give you the keys, “I hit – hit his car ‘cause I know that he loves it so much.” (Q67) You said “I realised he’s not going to give me the keys, he’s not going to swap it…so I went to his car and I swung once and hit the – the driver’s side bonnet” (Q67);
j. After you hit the car, you said “Fuck you” to your father, then walked to your car, threw the sledgehammer in the backseat and drove away (Q67);
k. You told police that “I was never going to hurt my father” and that while armed with the sledgehammer “I never came within three metres of him” (Q67);
l. When police read to you the Victim’s statement, you largely agreed with it, though told police you did not believe that the police had been called. In relation to your father, you said “I didn’t see scared. I saw angry. He came at me aggressively when I was calming his dog” (Q194). You denied threatening him and told police “I didn’t say at all anything else besides ‘Give me your fucking keys’” (Q202). You initially denied swinging the sledgehammer at your father (Q205), but later admitted that you did (Q206);
m. You told police your father was “overreacting to the situation” and that he was “overreacting, acting too terrified…he acted like he was, like, a little girl” (Q67). Contrary to your now admitted behaviour, you told police “I haven’t done anything to anyone. I haven’t hurt anyone, I’m not aggressive” (Q67). Ultimately you conceded “I know it’s a bad situation and I know it’s wrong and I just regret doing it” (Q67);
n. You acknowledged that you had a “moment of stupidity” and that you love your father. You also told police “I know I’m sick…I just need an opportunity…I’m not a violent person at all, I’m just a – a Victim who hasn’t had the right counselling and the right time to heal and that’s all it is” (Q66);
o. Finally you told police you wanted to get help and needed go to rehab and wanted to go to Odyssey House (Q214–15, 260).
Charge 5: Possession of a Drug of Dependence
22After your record of interview, you were brought to the holding cells and processed for custody. While changing clothes, a small zip lock bag containing a crystallised substance fell from your pants on the floor. Subsequent analysis of the bag confirmed the contents to be approximately 2.5 grams of Methylamphetamine. There is no argument that this was yours and for your own use.
Matters personal to you
23You were 44 at the time of the offence. You are now 45 years of age. Though clearly estranged from your father at the time of the offence, it appears you enjoy the support of your mother, Elisabeth Tanner (70). You live with her in Hawthorn.
24Your last long-term relationship of nine years was with your ex-wife, Ms Danae Manolas, the relationship ending in 2017 and the divorce being granted in 2018. You are now single and have no children.
Education and employment
25Having completed Year 12 at Haileybury College you have worked consistently, both as an employee and a business owner/employer.
26Between 2003 and 2020, you owned and operated your own glazier company, employing up to three employees and turning over up to (approximately) $1,000,000.00 per year. You were drawing a wage of approximately $100,000.00 to $150,000.00 per year.
27The failure of the business appears to have affected you badly. The business operated from the factory where you were subjected to a terrifying ordeal in 2019. The factory was owned by your father, who you obviously had a difficult relationship with.
28From 12 July 2021, you commenced employment as an employee glazier with South Melbourne Glass. You were proud to have obtained, and maintained, this employment opportunity.[4]
[4]Exhibit 9: Letter of Employment from Michael Aitken, South Melbourne Glass (undated).
29I have recently received a reference from Andrew Jackson, builder dated 1 February 2022,[5] that you have a labouring position available to you upon your release from prison with a great degree of understanding attached that you may be released on conditions of a CCO. I infer that Mr Jackson would be understanding of any such obligations you may have upon release.
[5]Exhibit 24: Letter from Mr Andrew Jackson dated 1 February 2022.
Medical history and forensic history
30During the course of the plea a substantial amount of material was tendered that dealt with the state of your health — both physical and mental — as well as your substance abuse issues. That material was:
Medical reports
a. Patient History from 302 Glenferrie Road Medical Centre 11 January 2021 that disclosures that you suffer ongoing L4/5 and L5/S1 disc degeneration;[6]
Psychological reports
b. Forensic psychological reports of psychologist Pamela Matthews dated 29 December 2020 (‘PM Report 1’)[7] and 20 August 2021 (‘PM Report 2’);[8]
c. Better Access Mental Health Care Plan 6 July 2021;[9]
[6]Exhibit 10: Letter from Dr Hatfield dated 11 January 2021.
[7]Exhibit 3: Report of Pamela Matthews dated 29 December 2020.
[8]Exhibit 2: Report of Pamela Matthews dated 20 August 2021.
[9]Exhibit 7: Better Access Mental Health Care Plan dated 6 July 2021.
Counselling reports
d. Letter from Odyssey House, Ms Rosario Campione, therapist, 19 May 2021;[10]
e. Letter from Access Health and Community, Ms Rosnani Lubis, 11 August 2021;[11]
f. Letter from Access Health and Community, Dr Chris Olszewski 17 August 2021;[12]
[10]Exhibit 5: Letter from Odyssey House dated 19 May 2021.
[11]Exhibit 8: Letter from Rosnani Lubis of Access Health dated 11 August 2021.
[12]Exhibit 6: Letter from Dr Olszewski dated 17 August 2021.
31That material, coupled with information gleaned from the brief, disclosed a complex mental health and concomitant substance abuse history.
32It was submitted that your mental health has been in marked decline since 26 February 2019, when you were the victim of a serious home invasion. You were blindfolded, gagged, had a firearm placed at your temple and were subjected to death threats by your assailants. That matter is presently before the County Court. I have read the statement you provided to police in that matter where you recount a protracted, harrowing and traumatic event.[13]
[13]Exhibit 13: Statement to Police by Richard McDonald (Accused) dated 26 February 2019.
33It is submitted that your mental health unravelled and your drug use escalated in the time after the events of February 2019.
34Following the offending against you, you have been variously diagnosed with the following mental health conditions:
a. Provisional diagnosis of schizophrenia;
b. Anxiety;
c. Depression;
d. Insomnia;
e. Post-Traumatic Stress Disorder – DSM-5;
f. Stimulant Use Disorder and Sedative Hypnotic Anxiolytic Disorder – DSM5; and
g. Substance Use Psychosis – DSM-5.
Mental health and drug use
35Your drug use pre-dates the 2019 incident. You commenced illicit drug use at the age of 21 and used ecstasy, amphetamines and cannabis until age 28. You used cocaine weekly between ages 30 to 38. While you were drug free for a period during your early 40s, you were using methylamphetamine heavily prior to age 41/42. At age 42, your methylamphetamine usage decreased to social use, before escalating again after the 2019 incident.
36It is worthwhile to note that your previous drug use had not resulted in hospitalisation, or related offending before 2019.
Danae Manolas
37Your former wife Danae Manolas, in a police statement prepared for an unrelated matter dated 22 September 2020,[14] outlines the following troubling observations of you shortly before the index offending:
a. In about August 2020, her cousin had seen you at a rehabilitation clinic and observed that “he wasn't looking good.”
b. As of Monday 21 September 2020, Ms Manolas observed you to be struggling mentally and appeared to be suicidal.
c. A series of texts sent by you caused her to form the view that you were “really delusional.” I note that some of the behaviour Ms Manolas describes was not simply delusional, but were also accompanied by menacing threats and ultimatums about perceived slights caused by her and/or her family. Within a matter of weeks you had offended in the manner I now am called upon to sentence you for.
[14]See, Exhibit 12: Statement of Danae Manolas [in an unrelated matter] dated 22 September 2020, pp. 1–2.
Pamela Matthews
38You have been forensically psychologically assessed by, and undertaken clinical psychological therapy, with psychologist Pamela Matthews, who produced the two reports I referred to earlier.
39She provides the following observations, diagnoses and opinions:
a. “The relationship between Mr McDonald’s Post Traumatic Stress Disorder, other mental state features, and substance use is circular. One exacerbates the other, and substance use is maintained as a form of self-medication. In the writer’s view, both conditions Post Traumatic Stress Disorder and Drug-Induced Psychosis, would have contributed to Mr McDonald's behaviour”.[15]
b. “Mr McDonald has improved mental health over the past three months, notably better managing Post Trauma Symptoms such as nightmares and paranoid ideation, challenging such ideas independently. Further, he reports, and his functioning would suggest reduced illicit drug use. Additionally, he has made a return to full-time work. The writer acknowledges that there have been some breaches, but the progress made therapeutically have from the writer's treatment and risk viewpoint outweighed the violations”.[16]
c. “Mr McDonald would benefit from a period of psychopharmacological treatment to stabilise his mental state”.[17]
d. Ms Matthews holds concerns for your ongoing treatment and rehabilitation should you be returned to a custodial setting.[18]
e. You intended to continue psychological therapy and treatment with Ms Matthews, which you did for a period of time.
[15]Exhibit 2: Report of Pamela Matthews dated 20 August 2021, p. 9, final paragraph.
[16]Ibid, p. 10, first paragraph.
[17]Ibid, p. 10, second paragraph.
[18]Ibid, p 10, final two paragraphs.
40You had a brief involuntary admission to the psychiatric wing of the Casey Hospital from 3 to 7 August 2020. You were provisionally diagnosed with schizophrenia on 10 August 2020.[19] You were prescribed and trialled Paliperidone and Olanzapine.[20]
[19]Exhibit 10: Letter from Dr Hatfield dated 11 January 2021.
[20]Ibid.
The entangled nature of poor mental health and drug use
41Your above mental health issues are hard to disentangle from your dependence on illicit drugs. Your counsel submits that the present offending is contextual, that is, in the context of long-standing and ongoing drug addiction and psychological/psychiatric issues. You have an ongoing alcohol and drug history.[21]
[21]Exhibit 2: Report of Pamela Matthews dated 20 August 2021 p. 4, second paragraph.
42You were briefly admitted as a residential inpatient at the Hader Clinic for 10 days for rehabilitation for a diagnosed substance use disorder (GHB and Methamphetamine). You were unable to complete rehabilitation treatment at that time and exited the programme a fortnight earlier than planned on 28 August 2020.
43Though you denied to police that you were in any way substance affected at the time of this offending, you clearly had a long-standing drug problem and indeed they found methamphetamine on you when you were arrested.
44I will deal with your time in custody prior to sentence in a moment, but having spent approximately four months on remand you were bailed on 10 February 2021 with a particular focus on dealing with drug and alcohol addiction.
45Since being bailed you undertook the following AOD treatment:
a. Inpatient treatment with Odyssey House from 11 February to 22 April 2021 (71 days);[22]
b. Access Health and Community, AOD counselling (weekly) from 30 April 2021;[23] and
c. Clinical psychological treatment with Pamela Matthews as I mentioned above.
[22]Exhibit 5: Letter from Odyssey House dated 19 May 2021; See also Exhibit 11: Letter from Christine Walker of Grampian Community Health dated 14 January 2021.
[23]Exhibit 8: Letter from Rosnani Lubis of Access Health dated 11 August 2021; Exhibit 6: Letter from Dr Olszewski dated 17 August 2021.
46Your bail was revoked by me on 9 December 2021 as your drug use persisted and the risk you posed to the community in that state was simply untenable.
Forensic history
47Your forensic history is unusual. As of February 2019, when you were the victim of the home invasion I have just referenced, you had only one driving related prior conviction in 2007 for which you received a suspended sentence.
48Twelve years then passed without offending of any kind until 8 December 2019, when you were dealt with a vast number of charges: drug possession; drive whilst disqualified; possession of weapons; and commit indictable offences whilst on bail. It was there that you were placed on a 12 month CCO, with a modest community work component and a significant therapeutic aspect, that included treatment and rehabilitation for drug abuse and dependency. It is clear by late 2019 you had a significant problem with drug abuse, and you knew full well you did.
49I have been provided by your lawyers with a list of pending matters and summaries.[24] The pending matters appear in chart form and disclose offending on 16 dates between March 2019 and September 2020 — which is to say over 18 months up until the weeks before the matter presently before me.
[24]Exhibit D: Bundle of 14 Police Summaries; Exhibit 16: Chronological Summary of Pending Matters.
50The outstanding offending is due to proceed as a plea of guilty in the Magistrates’ Court on 23 March 2022. I obviously do not sentence you for those outstanding offences. That will be a matter for a Magistrate at another time. It is worth noting however the character of those offences, occurring as they do in the time immediately preceding the matters before me.
51That conduct involved charges of conduct endangering serious injury by using a cross bow, criminal damage, discharging arrow, possess controlled weapon, breach Family Violence orders, driving matters, breaches of bail, stalking and other matters including possession of drugs.
52The summaries of those offences are disturbing. You had a cross bow for protection and fired it into premises near to you as you thought people were hiding in the fridges there and people were using your wi-fi. In August 2020 you fired arrows from a compound bow into the factory of your father where you were staying.
53You sent menacing and threatening emails to a Ms Costello. You sent menacing deluded messages to Ms Manolas. You knowingly and persistently drove in contravention of Court orders to the contrary. You were found on more than one occasion with methamphetamine on you and drove with methamphetamine in your system. On one occasion you were driving while disqualified, while carrying a hunting knife and in possession of GHB. On another occasion you drove with amphetamine in your system.
54The number and type of those offences is concerning. I repeat that I do not sentence you for them, nor are they prior convictions, but they paint a picture of a man completely out of control for about 18 months between early 2019 and late 2020, no doubt influenced by the events that befell you in February 2019. Amongst other things, they confirm that you are particularly unstable when substance affected.
55The matters I am about to summarise ought to be read with the ‘Chronology of Drug Use and Treatment Proximate to Offending and Plea Hearing’ document provided by the Crown on 24 February 2022.[25] In August 2020, after admission at Monash Hospital, you were placed on an Assessment Order and commenced on anti-psychotic medication. You declined to involve yourself with the addiction medicine treatment team there. You knew or must have known that your continued drug use caused you significant social, interpersonal and legal problems.
[25]Exhibit E: Prosecution Further Submissions on Sentence and Chronology dated 24 February 2022.
56That you were in breach of orders disqualifying you from driving, on bail, the subject of a CCO and the Respondent to a Family Violence Intervention Order when you committed these offences before me are not only matters of real concern about your capacity to honour supervisory orders, they aggravate the instant offending.
57You were placed on bail on the present offending on 10 February 2021. By that time you had served 125 days in custody. Given the risk that you clearly posed to the community if substance affected, one of the special and explicit conditions was that you not use drugs of dependence (and other things).
58Despite the forgoing recitation of your pending matters and the breaches of bail, CCO and Family Violence Intervention Order you had made some progress whilst on bail in this matter.
59I say some progress because as it emerged during these proceedings, that after an aborted short stay at Odyssey House in April 2021, on 6 July 2021 amphetamine was detected in your urine.
60By 7 August 2021, you were found with cocaine and methamphetamine on you. You were charged with five charges of breach of bail. You were dealt with in the Magistrates’ Court on the same day as the offending by way of a fine.
61Again, on 13 August 2021 (that is two weeks before this plea commenced), amphetamine was detected in your urine.[26] Finally, as a result of a pre‑sentence report ordered by me, you volunteered that you continued to use drugs in the community, that you used methamphetamine in late November 2021 (during the course these proceedings being part heard), and that you at that stage planned to continue to use methamphetamine in order to stay both vigilant and alive to those who were conspiring to cause you harm.
[26]I have also been provided with the result of two urine screens dated 4 and 22 October 2021 which were negative for illicit substances.
62The time you had previously spent in custody had not sufficiently deterred you from using drugs. Given your propensity to act and offend on delusions of this nature, and the obvious effect methamphetamine had on your mental state, I revoked your bail on 9 December 2021. This most recent period of remand constitutes a further 76 days by way of pre‑sentence detention.
63I will return to the weight to give your capacity to reform (seeming as it does to be significantly reliant on your capacity to remain drug free) in due course.
64I will turn now to the court ordered pre-sentence reports.
Court ordered pre-sentence reports
Report of Dr Tan dated 29 November 2021[27]
[27]Exhibit 18: Psychiatric Report dated 29 November 2021.
65Prior to your most recent remand, in an effort to get to the bottom of your psychological make-up, and the effect drugs have on your actions and presentation, I ordered a pre-sentence psychiatric report. It seemed to me that the question of whether or not your psychosis was organic (ie. in fact a sufferer of schizophrenia) or your psychosis was attributable to drugs alone was capable of making a difference to the sentence I was to impose.
66Dr Tan provided a thorough report. In that report you indicated you did not believe that you had any mental illness, did not require treatment and did not in fact suffer from PTSD, but rather you were genuinely under threat and your vigilance et cetera were totally normal responses to the threat you faced.
67The threats you faced appeared to be that unknown people were speaking about you, following you, hiding in fridges nearby, using your wi-fi to use your business and personal social media accounts, that Victoria Police were part of a conspiracy against you, that your father visited your home to listen to your conversations and watch you sleep, interfering with your motor vehicle (not unlike the allegation you made against your father), that Beyonce and Jay Z were writing songs describing your former partner’s behaviour with your best friend. In short, you were totally delusional.
68Dr Tan assessed you as presenting with psychosis at the time of her assessment. Problematically, those psychotic symptoms were occurring in the setting on ongoing drug use. It was impossible for her to determine if the symptoms you experienced were secondary to substance abuse or as a result of an enduring, underlying mental illness.
69Dr Tan was of the provisional view that you certainly had a Methamphetamine Abuse Disorder.
70There doesn’t appear to be much doubt that in order to be diagnosed with PTSD an individual must generally demonstrate:
a. Exposure to actual or threatened death, serious injury or sexual violence;
b. Intrusive symptoms associated with the traumatic event;
c. Persistent avoidance of stimuli associated with the traumatic events;
d. Negative alterations in cognitions and mood associated with the traumatic event; and
e. Marked alterations in arousal and reactivity associated with the traumatic event.
71It is a mark of the gravity of the offending against you, that you as a victim have had your life changed for the worse because of what happened to you. Unsurprisingly, you describe a history of symptoms wholly consistent with PTSD following the 2019 incident. You describe experiencing intrusive memories of the event, emotional distress, avoidance, fear, hypervigilance, anger and irritability.
72It is difficult to ignore this unwarranted event in your life being the catalyst into your descent into drug use, poor mental health and eventually offending. There is a tension between your status as a victim who, for reasons so closely connected with the offending against you, has become an offender.
73When dealing with Dr Tan, you agreed that you had previously experienced PTSD but did not believe you continued to experience symptoms and had instead formed the belief that you remain genuinely under threat. It was difficult for her to distinguish between ongoing symptoms of PTSD and your psychosocial and physiological response to your paranoid persecutory beliefs that various individuals and organisations were conspiring against you.
74Dr Tan’s view was that you would benefit from assessment from ongoing symptoms of PTSD once your psychotic symptoms have resolved.
75While it was obvious to Dr Tan was that you needed to abstain from illicit substances as you experienced an increase in psychotic symptoms when you so used, as noted earlier, you disclosed to her no intention of stopping use.
76After your remand date, Dr Tan conducted a second assessment whilst you were in custody and no longer using amphetamines. You were reviewed in January 2022.
Report of Dr Tan dated 1 February 2022[28]
[28]Exhibit 20: Second Psychiatric Report dated 1 February 2022.
77Dr Tan had the benefit of seeing you a second time, when you had been in custody and the effects of methamphetamine abuse had dissipated.
78You were distressed at being remanded and initially harboured conspiratorial views that your own lawyers were somehow complicit in your return to custody. This remand had finally caused you to reflect on the impact of drugs on your mental state. It seems now you might finally accept that you need to be under the care of a mental health professional upon release.
79The delusional aspects of your thinking have dissipated. Dr Tan says:
In my first assessment of Mr McDonald, I formed an opinion that he was experiencing psychotic symptoms in the context of ongoing drug use whilst on bail. Having reviewed him a second time whilst remanded, it has become apparent that these symptoms resolved in the setting of abstinence from drug use, and without the need for pharmacological intervention (ie. he has not required antipsychotic medication during his current episode of incarceration). This history and presentation is consistent with a diagnosis of Drug-Induced Psychosis.[29]
[29]Ibid, p. 8 [77].
80Whilst using methamphetamines you developed a Drug-Induced Psychosis and formed a belief that your father was conspiring against you somehow, and this contributed to the current offending against your father. Dr Tan’s treatment recommendations sensibly urge any sentence imposed to be targeted to assist in addressing your risk of re-emergent psychosis and drug use.
Application of Verdins
81It is convenient at this point to deal with the application of the sentencing principles as enunciated in R v Verdins.[30]
[30](2007) 16 VR 269 (‘Verdins’).
82Your offending was likely attended on by some form of psychosis. To that extent there is link between your offending and the psychosis. But that alteration of your mental state was not the product of some underlying, organic mental illness. It was drug induced. It is not that this fact aggravates your offending per se. The Crown do not invite me to sentence you on the basis it does. Rather, it is not appropriate for me to mitigate (in the ways envisaged by Verdins) your sentence on the basis of this psychosis, given you knew or ought to have known your uncontrolled drug use would cause or otherwise contribute to your offending.[31]
[31]R v Martin (2007) 20 VR 14, 18–29 [15]–[53].
83This is not to say your uncontested, tragic diagnosis of PTSD plays no part in the sentencing exercise. It is impossible to not have a degree of sympathy for the manner in which you became unwell and it is understandable (though not an excuse) why you would self-medicate in the way that you have. I consider that given the most unfortunate way in which you became an offender, a measure of mercy is warranted in your case.
84To develop that matter further, you are not now an otherwise well-functioning individual who took methamphetamine recreationally knowing it would change you. The decisions you made when to take methamphetamine, are always to be seen through the lens of your PTSD. There is no doubt your ingestion of methamphetamine exacerbated your illness and further eroded your judgement. To be clear I am not saying you were totally insight-less into the effects of drug use, but if your base line of functioning was already one marred by intrusive thoughts, anxiety and alteration of mood, then that needs to be considered when properly assessing your culpability. As I have already noted, the Crown do not say your culpability is heightened because of your awareness of how methamphetamine would affect you, but rather assert that your culpability is not reduced. In my view, your culpability is to some extent reduced because of your pre-existing PTSD.
85I cannot accept the submission raised on your behalf that this offending is out of character in the sense that concept is expressed in Morrison v The Queen.[32] This offending is as I said, part of continuum of similar offending with similar causative factors. That this is the most extreme manifestation of your maladaptive drug use and delusions is not to the point.
[32][2012] VSCA 222.
86Ms Fargher on 25 February 2022 rightly conceded that there is also room in this sentencing exercise to modestly adjust the weight to be given to general deterrence given your condition. I respectfully agree with that submission.
87I also accept that, as a consequence of your PTSD and associated anxiety, depression and insomnia, the fifth principle articulated in Verdins is enlivened. Incarceration will weigh more heavily on you than it would on an ordinary member of the population as a result of your post-traumatic symptoms. I was informed on 25 February during the further plea of your extreme isolation in prison due to an unspecified infection in a very cautious and understandably risk averse prison system. You are not only locked down, you were not receiving treatment of the kind the expert evidence seems required. On the date of these sentencing remarks, I received further material in the form of emails sent by your mother to the prison system about your physical and mental health,[33] along with the PIMS record of your prisoner movements, confirming that you have been in a protection unit since late December 2021.[34]
[33]Exhibit 25: Emails from Elizabeth Tanner, Mother of Accused, to Prison (2 emails).
[34]Exhibit 26: PIMS Prison Movement (Sentence/Remand) Report.
88There is a further matter worthy of consideration. Your Stimulant Use Disorder is obviously a matter I consider when determining what sentence to impose, given as it does speak to the need for targeted rehabilitation and treatment.
Pre-sentence detention and ‘Akoka’ residential rehabilitation
89At age 44, you were a first time remandee for 125 days between 9 October 2020 and 11 February 2021. I gather that this was an aversive experience for you, and further note you were remanded at a time when prisons were not completely open and programmes and courses were not fully available because of the Covid-19 pandemic. You were also concerned that those who offended against you in 2019 would come to know that you too were in custody.
90Further, you spent 71 days in a voluntary residential rehabilitation facility, namely Odyssey House, from 11 February to 22 April 2021. I have been invited to take this figure into account in your favour in accordance with the principles enunciated in Akoka v The Queen.[35] The prosecution concedes it is open for the Court to take this time into account when determining an appropriate sentence, however time spent in residential rehabilitation is not equivalent to “real incarceration” and so does not attract the same deduction or weight.[36]
[35][2017] VSCA 214.
[36]Ibid at [111]–[112]; Sahhitanandan v The Queen [2019] VSCA 115 at [30]–[31].
91Further, as a result of your further non-compliance with bail you have served a further 81 days in custody, again during the pandemic.
92The totality of time you have spent in confinement is 206 days, or close to seven months. You have spent a little over two months in residential rehabilitation as well.
Sentencing position of the parties
The Accused
93In summary, Mr Kantor relied on the following matters in mitigation:
a. Your early plea of guilty;
b. The nature of time spent in residential rehabilitation;
c. The contextual nature of the offending, occurring as it does with a backdrop of long-standing and ongoing drug addiction and psychological/psychiatric issues;
d. That you had an ongoing employment opportunity;
e. Verdins ought to be given weight in the way outlined above (especially limb 5 in that any further term of imprisonment will be more onerous on you); and finally
f. a further protective factor is the extant Final Family Intervention Order L12039453 with respect to your father.
94Given proper weight, he submits, the appropriate penalty to impose is a sentence that involves a declaration that you need not spend more time in custody that you already have, and be placed on a CCO.
The Crown
95The Crown submit that having regard to all the circumstances of the offending and applicable sentencing considerations, the prosecution submit that a term of imprisonment involving a head sentence and a non-parole period is warranted in this case.
96They submit that Attempted Armed Robbery is a serious criminal offence. The maximum penalty for that offence, being 20 years imprisonment, reflects the degree with which both the legislature and the community condemn offending of this kind.
97Deterrence and denunciation are paramount sentencing considerations for both Attempted Armed Robbery and Contravention of Family Violence Intervention Orders, as is protection of the community.
CCO assessment
98In order to explore all potential sentencing options open to me, I had you initially assessed for your suitability for a CCO in September 2021.[37] You were found to be at least a medium risk of re-offending. Your history of poor compliance with (and breach of) the CCO was detailed, and you appear to have actively misled the assessor then that you were no longer really using methamphetamines (giving the impression that any use was infrequent or ‘recreational’) and were no longer a ‘drug addict’ and that you had conquered your dependence on that substance. As we know from the report of Dr Tan, this was not true.
[37]Exhibit 17: Extended Pre-Sentence Report dated 19 October 2021.
99At that point in time, you were assessed as suitable for a CCO, with conditions.
100Given your disclosure to Dr Tan, and after your more recent remand, I had you assessed once more for a CCO, with a further report generated on 7 February 2022. That assessment is accompanied by a MAHRS report.[38]
[38]Exhibit 21: MHARS Assessment Report dated 8 February 2022.
101By this time you were more forthcoming about your illicit drug use and mental health struggles. You appeared to be finally motivated to genuinely engage with health professionals in the community. You were assessed as suitable for such an order, again with conditions. Specifically, Mr Lane, the registered nurse who completed the MAHRS assessment helpfully articulated the following conditions that would benefit you, including GP reviews, substance abuse counselling and psychological treatment regarding trauma informed counselling and to learn skills and strategies to self-regulate your mood, emotions and thoughts.
102This was the second time a Corrections Officer, who was privy to the entirety of the relevant material (including your breach history) and who was in a position to assess your capacity to undertake an Order concluded you were suitable. This is no irrelevant matter.
103Now, in considering the parties respective submissions, I will turn to the relevant matters of principle applicable.
Offences – gravity and relevant considerations
Victim impact
104Your father authored a victim impact statement (‘VIS’) on 20 November 2020, some two months after your terrifying offending. It was difficult to read a father speak of his son as a figure who continues to frighten him, causes him to ruminate on your offending, who enjoys his life less because of the way that you offended, who worries that you have wasted your life and wonders if he will ever have a wholesome and fulfilling relationship with you. He worries how this offending damages his relationship with Ms Jacques. He is deeply conflicted between loving you as you are his son, and his understandable outrage and anger about your attack on him. I was told by Ms Fargher at the time of the plea in August 2021, that your father’s feelings towards you and the offending had not changed since he authored that victim impact statement. I note his love and concern for you manifest in the comment he made even while you were terrorising him, namely “I don’t want your car, I just want you to get better.”
Other factors
105Ms Fargher on behalf of the Crown submits that the offending is aggravated by the following features:[39]
a. The offending took place at night, at the home of the Victim, where he and his family were entitled to feel safe, before spilling out into a residential street.
b. You were subject to an undertaking of bail, a CCO, and a Family Violence Intervention Order for the protection of the Victim.
c. The weapon used in the Attempted Armed Robbery, namely a sledgehammer, was a serious weapon capable of causing real harm to the Victim.
d. During the course of the offending, you shook and swung the sledgehammer at the Victim and held it at him while making verbal threats against the Victim.
e. There was some degree of planning, noting your admission in the record of interview that you drove to the Victim’s house with the intention of taking the Victim’s car, and brought with you the sledgehammer with you to the property.
f. As indicated in his VIS, the offending has had a significant and ongoing impact upon him, including deterioration of his mental wellbeing and heightened concern for his own safety and the safety of others.
[39]EX C: Prosecution Submissions on Sentence dated 23 August 2021 at [5].
106That being said, the Prosecution concedes the offending was relatively unsophisticated and escalated upon the Victim’s refusal to promptly comply with the demand for his car keys.
Attempted armed robbery
107Offending such as this is frightening. The community has a justifiable expectation that such offending will be taken very seriously. The consequences for engaging in such serious criminality must be such that any like-minded members of the community who are contemplating behaving in this or any similar fashion, will pause to contemplate whether the potential perceived benefits or righteousness of such conduct are worth the risk of being caught and punished. By appropriately punishing such conduct, the Court is, on behalf of the community, seeking to denounce it and vindicate the values of that community.
108In sentencing offenders for charges of attempted armed robbery, it has been said that the predominant sentencing purpose must be general deterrence — that those who are likeminded to partake in conduct of this kind, must anticipate stern punishment from the Court.[40]
[40]DPP v Heffernan [2014] VCC 1561 at [22] (Gucciardo J).
109This example of the offence is unusual in the sense it involves an attempted armed robbery of family member. This is no way diminishes its seriousness.
Contravene order intending to cause harm of fear for safety
110The offending occurs in breach of a Court order prohibiting you from (amongst other things) even being within five metres of your father and certainly prohibited you from damaging any property of his.
111Your offending evidences an intention on your part to deliberately defy that Order and by your plea you acknowledge that it was your intention in engaging in the conduct you did, you intended to cause your father harm or fear for his own safety.
112There is a substantial amount of overlap between this conduct and the threats and menace deployed of the purposes of the attempted armed robbery. I will take those common matters into account so as to avoid infringing the rule against double punishment.
Family violence generally
113It is conceded rightly by your counsel that general deterrence, denunciation and just punishment will all have significance in the formulation of an appropriate sentence. These principles are relevant in that the sentence must convey to others that violence of this nature will not be tolerated by the community. That is especially so when considering matters involving family violence.[41]
[41]Pasinis v The Queen [2014] VSCA 97 at [57].
114Going back as far as 1998, Brooking JA stated that:
Intervention orders must be strictly adhered to, and it is very much in the interests of the community that those against whom such orders are made be under no misapprehension that the courts will punish severely those who breach such orders. The applicant's actions suggest that he believed he could breach the intervention order with impunity. Only by appropriately severe penalties can the courts make clear to the applicant and the broader community that such conduct will not be tolerated.[42]
[42] R v Cotham [1998] VSCA 111 at [14].
Criminal damage
115You deliberately engaged in acts that caused damage to you fathers’ property. This was clearly in breach of the Family Violence Intervention Order. The first aspect of the damage was either by the use of a sledgehammer to break his gate down or by your driving through the gate to gain entry to his property (or both). The second aspect of the same offence is the capricious and utterly unnecessary striking of the victim’s car with the sledgehammer when your demands were not met. The quantum of the damage caused by you was not great,[43] but the manner in which the damage was caused is purposive, frightening and concerning.
[43]I was informed in the region of $8,000.
Possess methamphetamine
116I view the possession of the methamphetamine as itself relatively minor and reflects your appetite for that particular substance at that time in your life.
Driving whilst disqualified
117No adjective such as careless or dangerousness is used to describe your driving in a formal way — that is to say that you have pleaded guilty to the charge of driving whilst disqualified simpliciter. I’ve noted the way that you used the car to break down the gate. The sentence I impose for this charge will not punish you for that fact. This offence, along with the Breach Family Violence Order and Bail and being a CCO breach is another example of your inability or unwillingness to abide by Court Orders. You have six prior convictions for this type of offending already. This does not include the eight further instances of driving contrary to the conditions of your licence that are disclosed in the list of pending matters. You have shown a contemptuous attitude to the fairly simple proposition that a Court has ordered you not to drive a motor vehicle.
118Not only will you receive a term of imprisonment for this offending as part of some other sentence, but I will make an order cancelling your licence and disqualifying you from driving.
119A period of licence disqualification after your release emphasises the punitive purpose of sentencing. In making that order I have had regard to the disqualification period’s effect on your rehabilitation and whether the period fixed would be counter-productive to its achievement. Despite your poor history of driving, I do not wish for the lack of a valid licence to unduly impede your ability to work, or attend appointments for supervision. I have calibrated the orders against your licence against the sentence I am about to impose.
120Mr McDonald, I will make it clear I expect that that order will be honoured.
Commit offence on bail
121The breach of bail is another troubling matter. The charges the subject of the indictment were all committed whilst on bail for other offences.[44] The fact that you committed those matters on bail whilst it is a relevant matter, care must be taken so as to avoid any risk of double punishment as between these offences and the related summary offence of commit indictable offence on bail.
[44]Again to repeat, in breach of both a CCO and a FVIO.
122This summary offence for current sentencing purposes essentially involves your preparedness to willingly defy a Court order again which granted you conditional liberty, on the basis that you would not commit any further offences. In the context of this offence, you are not to be punished twice or additionally for the conduct the subject of this indictment.
123Further, pursuant to s.16(3C) of the Sentencing Act 1991, any term of imprisonment imposed for an offence committed while released on bail must be served cumulatively upon any other sentence of imprisonment imposed on the offender.
Other matters of principle
Plea of guilty and remorse
124You pleaded guilty at the earliest opportunity. There is significant utilitarian value in this plea. It is common ground between the parties that the utility of your guilty plea is greater for having been made during the Covid-19 pandemic, at a time when there is a significant strain on the criminal justice system, as held by the Court of Appeal in Worboyes v The Queen.[45]
[45][2021] VSCA 169.
125More than this, though, it is put on your behalf, and accepted by the Crown that you have shown remorse through this early plea of and in making full admissions to the offending in the record of interview. In this case, your admissions and plea represent a real human saving. Your father and his partner were not forced to relive this episode by having to give evidence. I assure you that the discount you receive for pleading guilty to these matters will be both substantial and perceptible.
Custody
126You have spent now nearly nine months in custody at a time when I consider that there has no more onerous time (in modern times at least) to be a remandee. I will take into account the particularly isolating and fearful time you’ve spent on remand. I will add to that the extra burden you carry because of your PTSD. That burden has been carried by you in the additionally restrictive environment of a protection unit. The cumulative, punitive effect of these matters tempers the amount of time in confinement I order you to serve in order for you to be adequately punished. This will not result in you being released immediately, but rather in the near future.
127I will further take into account in the way contemplated by Akoka, the time you have spent in residential rehabilitation.
Totality and double punishment
128I am mindful of the principle of totality when sentencing you for these multiple offences. There is an interaction between your offending conduct that requires caution as to avoid doubly punishing you. I will ensure that the total sentence imposed is a just and appropriate measure of the total criminality involved.
Protection of the community
129Protection of the community assumes a real prominence in your case. Put simply, you are dangerous when you use drugs. One way to protect the community is to confine you for a period of time, which will happen. The other way is to take the view that the community is best protected in the long term by fostering your reform. I propose to use both means of community protection in this sentence.
Prospects for reform and specific deterrence
130Your prospects for reform are difficult to assess.
131In the span of a life of 44 years, the majority of your offending is compressed into a period of about 18 months, in 2019 and 2020. That offending has been persistent and sometimes serious (such as the matter before me). I bear in mind, though, that your illness and problematic drug use are still new to you.
132Your compliance with a variety of Court orders thus far has been poor. Most troubling has been your breaches of CCO which have been designed to assist your reform and your breaches of bail. Thankfully, no incident like the one that brought you before me was repeated. You have not gone near your father. Sadly, a relatively short period of initial detention after your remand for these matters was not a sufficient deterrent to you to cease drug use.
133It is unrealistic though to expect your issues (unquestionably caused by your status as a victim of serious offending), to be resolved so quickly. It will take time, endeavour, strict supervision along with tailored treatment for you to improve. Your reform is achievable and as such is matter worth pursuing. This Court will persist with you, should you be willing to seize this opportunity given to you.
134I am encouraged by your recent insights gained whilst in custody where you appear to now understand your own need to be treated and abstinent from drugs. You have a place to live and work to go to upon your release. You have proactively (if not somewhat optimistically, given the date of these appointments) sought out appointments with Ms Lubis for counselling and a GP appointment in March this year.[46] This self-referral in my view augers well for your prosects.
[46]Exhibit 23: Email from Access Health and Community dated 15 February 2022.
135Whatever prospects you do enjoy appear to be wholly allied to your ability to remain free of illicit substances and access tailored treatment to arrest any possible relapses. It appears to me from a review of the material, that any treatment plan you are to engage in is capable of being offered by Corrections,[47] and would be sensibly measurable in years. That treatment is not available or offered to you whilst you are in custody right now.
[47]Again, see recommendations of Mr Lane in the MAHRS Assessment Report (Exhibit 21).
Head sentence / non parole period
136It was submitted by the Crown that the only appropriate disposition was a head sentence and non-parole period. I well understand why that submission was made. The offending is serious and your history of compliance with Court Orders has thus far been poor.
137You have been assessed as suitable for a CCO by those responsible for administering such Orders. Their view is not determinative. Naturally I have doubts about your ability to comply. The Crown submit that these doubts ought be to some extent determinative of the type of appropriate sentence I impose. As I said, they submit I ought to impose a head sentence and non-parole period. In my view, any doubts I have can be assuaged by the imposition of rigorous conditions to treat and supervise you over a long period of time. Supervision for such a duration would reflect your particular treatment and management needs. A configuration of sentence that involves a term of imprisonment followed by a much longer period of intense supervision is available and appropriate.
138I have moderated the sentence as much as possible bearing in mind your plea, your remorse, your mental health, the circumstances of your remand (including its onerous nature at present and because of your PTSD), the time you have spent in rehabilitation and your prospects to be reclaimed.
Sentence
139This has been no means an easy sentencing exercise. After anxious consideration and having weighed the relevant (and often competing) sentencing principles, the appropriate sentence is one that requires you to serve some further time in custody, followed by a CCO. This provides a more flexible sentencing option, enabling both punishment and rehabilitation purposes to be served together.[48]
[48]Boulton v The Queen (2014) 46 VR 308.
140Accordingly, you are convicted and sentenced to 10 months' imprisonment, followed by a two year CCO.
141It appears to me that I can denounce your conduct, punish you, deter others as well as foster conditions that will assist your reform by imposing such an order. I consider the community is best protected by your reform and that reform has the greatest of prospects of success at present in the community with tailored treatment.
142This Order will be an onerous one and that is by design. There will be a punitive component in the form of a significant amount of unpaid community work over the duration of order. I understand that you have an employer who will be accommodating of these obligations you now have on the order. You will be subject to mandatory testing, treatment and supervision. That supervision will extend to mid-2024 — nearly four years after this offending that brings you before me.
143You will be subject to Judicial Monitoring, meaning at frequent intervals I will hear about your progress in open Court. Should your progress be poor or your compliance be less than ideal, I warn you now, that the consequences for you will be severe. Not only is beaching a CCO a criminal offence that is punishable by imprisonment, but upon a breach you can and will be brought back before me and resentenced for this present offending.
144You would be well advised to seize this opportunity, Mr McDonald, to reclaim your life.
145Every CCO, including this one, contains core conditions and they are as follows:
a. You must not commit another offence punishable by imprisonment during the period of the order. I pause there, Mr McDonald, that would involve possession of drugs or driving a motor vehicle.
b. You must comply with any obligation or requirement prescribed by the regulations.
c. You must report to, or receive visits from, the Secretary during the period of the order.
d. You must report to Box Hill Community Correctional Services within two working days of the commencement of the order.
e. You must notify the Secretary of any change of address or employment within two working days after the change.
f. You must not leave the State of Victoria, except with the permission from the Secretary.
g. You must comply with any direction given by the Secretary that is necessary for the Secretary to give, in order that you comply with this order.
146In addition to those core conditions, the special conditions that I impose are as follows:
a. You are to be the subject of supervision by the Office of Corrections.
b. You will complete 250 hours unpaid community work over the duration of the order.
c. You undergo assessment and treatment including testing for drug abuse or dependency as directed. That will include urine screens.
d. You undergo assessment and treatment including testing for alcohol abuse or dependency as directed.
e. You undergo mental health assessment and treatment as directed.
f. You must undergo programs consistent with the purpose of treatment and rehabilitation, which might include in part, but is not limited to employment.
g. In order to encourage you to fully engage with the treatment that the State will provide and make available to you, I will order that 75 hours of treatment undertaken as part of this order to be deducted from the community work component.
h. I will order your first judicial monitoring appointment on 4 July 2022 at 9.30 am. By my calculation, that is approximately one month after your release from custody.
147I can only make such an order, if you consent to it being made. Mr McDonald, do you consent to that Order being made in those terms?
148OFFENDER: Yes, I do, Your Honour.
Pre-sentence detention
149Pursuant to s.18 of the Sentencing Act 1991, I declare that you have served a total of 206 days pre-sentence detention, not including today’s date, in respect of the sentence that I have just imposed. I order that such period is to be reckoned as already served under that sentence, and I further order that the declaration and its details be entered in the records of this Court.
Section 6AAA Sentencing Act 1991
150You indicated your intention to plead guilty at the first Case Conference, after two earlier Committal Mentions. In accordance with s.6AAA of the Sentencing Act, the Court must state the sentence and the non‑parole period, if any, that it would have imposed but for the plea of guilty.
151Mr McDonald, in your case, but for your plea of guilty to the charges, I would have sentenced you to three years and two months' imprisonment, with a non‑parole period of 22 months.
Ancillary orders
152A disposal order for the Methylamphetamine and the sledgehammer will be made in the terms sought by the Prosecution.
153Listen very carefully, Mr McDonald. Pursuant to s.28 of the Road Safety Act1986, I cancel and disqualify you from driving in the State of Victoria for a period of eight months, it is to commence on the date of your release from custody on this sentence.[49] I decline making any order with respect to your vehicle’s registration.
[49]Post script – this is confirmed to be on 4 June 2022.
154It is an offence in the State of Victoria for you to drive while disqualified. It would be regrettable if you were breached on this Order for doing so.
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