R v McDougall

[2019] NSWDC 400

District Court

New South Wales

Medium Neutral Citation:	R v McDougall [2019] NSWDC 400
Hearing dates:	05 April 2019
Date of orders:	05 April 2019
Decision date:	05 April 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of 3 years to be served by way of an intensive corrections order: at [20].
Catchwords:	SENTENCING — Aggravating factors — Without regard for public safety SENTENCING — Mitigating factors — Plea of guilty — Remorse — Rehabilitation — Limited prior record SENTENCING — Penalties — Aggregate sentence — Intensive correction orders SENTENCING — Relevant factors on sentence — Objective seriousness — Purposes of sentencing — Quasi custody — Form 1 offences SENTENCING — Subjective considerations on sentence — Drug addiction e — Mental illness— Intoxication
Legislation Cited:	Crimes Act 1900 Drug Misuse and Trafficking Act 1985 Road Transport Act 2013 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown)   Christian McDougall (Offender)
Representation:	Mr A Florance (Crown –DPP)   Ms J Ghabrial (Counsel for the offender)
File Number(s):	2018/110767

Judgment

1. The Crown Prosecutor very fairly conceded in his comprehensive written submissions that a bizarre episode of criminality on about 8 April 2018, involving this offender, was, on the evidence, due to a methamphetamine-induced psychosis and that it was to such an extent that it may even have supported a potential defence of mental illness, according to the psychiatrist. As the Crown notes, notwithstanding that finding, the offender does not seek to traverse his pleas of guilty to a number of offences.

2. The short version is that this 45-year-old man, who really has no criminal record other than very minor possess drug charges in 2017, which were dealt with under a section 10 bond and an obscene language offence in Queensland in 1994, went to the Four Seasons Hotel in Sydney on Sunday, 8 April 2018. He produced a drivers licence, which obviously was not his, checked into a room and made a number of complaints about the room. The next morning, he walked past the reception desk and said, "There's a fire in my room". The receptionist was obviously alarmed and she attempted to find out which room he was talking about.

3. Ultimately they ascertained, after finding out his name, that he had been staying in room 2904 and there was, indeed, a fire in his room. Flames, about 70 cm high, were burning from the mattress. The fire brigade was forced to attend. There was damage to the bed, obviously, and that is the subject of sequence 003, damage property by fire under s 195(1)(b) Crimes Act 1900, which is one of the three principal charges to which he pleads guilty, carrying a maximum penalty of ten years imprisonment with no standard non‑parole period.

4. Located inside his bags, which were left in the room, were some drugs and some cash. There was $2374, which is the subject of a money laundering count under s 193C of the Crimes Act 1900, which carries a maximum penalty of three years imprisonment with no standard non-parole period.

5. The drugs were found to be methylamphetamine. First, there was 1.84 grams, which is the subject of one of the Form 1 offences. The Form 1 offences will be dealt with under the principal supply count, in the way suggested by the Chief Justice in the guideline judgment. There are two other quantities of methylamphetamine, the subject of sequences 002 and 004, which are also Form 1 offences.

6. Later that day, the offender went to the Adina Hotel in Surry Hills, and again produced the driver's licence which was not his. He was refused a room on the basis that it was not his licence. He became aggressive. He went out and got in a car anddrove away. The police stopped that car. They saw the offender walking away from the vehicle. There was a struggle. As they tried to arrest him, he assaulted one of the officers by kicking his legs up towards the officer's head. That is the subject of sequence 003, a Form 1 offence of assault officer in the execution of his duty.

7. There is another Form 1 offence of assaulting another officer, Constable McKay. They applied the capsicum spray and then a taser. That led to a further Form 1 offence of resisting officers in the execution of their duty. He was arrested, his bags were searched, and contained 48.9 grams of methylamphetamine, more than nine times the indictable quantity, which is the subject of the first principal count of supply prohibited drug under s 25(1) of Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of 15 years' imprisonment with no standard non-parole period.

8. The licence that he had used on the two occasions had been stolen and that is the subject of a further Form 1 count of goods in custody. Police took the view that he had bloodshot eyes and was clearly under the influence of drugs. A sample taken at St Vincent's Hospital was positive, and he was, therefore, charged with driving under the influence of illicit drugs, which is the subject of a count under s 112 of the Road Transport Act2013 of driving under the influence of drugs, which carries a maximum penalty of 18 months imprisonment and I am asked to deal with that under the summary jurisdiction.

9. He was interviewed and he said that he had stayed at the hotel on the first night, that is, the Four Seasons. He said that Mr Dao knew that he had taken his licence. He admitted to owning the drugs and had consumed a small amount of drugs one or two days before. He said that he had given up ice use. To add to the facts, the offender, through his counsel today, made further admissions to the history contained in the Sentencing Assessment Report. He had told the author that he denied responsibility for the supply of prohibited drugs and claimed that he possessed them for personal consumption, but he frankly concedes today, and has not been challenged by the Crown that he also intended to supply some of the drugs to continue his personal drug habit.

10. There is a significant bundle of material related to the subjective case. He has been in custody from his arrest on 9 April 2018 until being released on bail on 25 January 2019. That was obviously his first time in custody. He was released to reside at a drug rehabilitation centre at Narara on the Central Coast. He was last employed two years ago on a permanent basis. He acknowledged to the author of the Sentencing Assessment Report the recreational use of cocaine, ecstasy, and cannabis from his early twenties and daily use of methylamphetamine for the months leading up to his arrest.

11. He has been abstinent from drugs since his apprehension and during his residential rehabilitation. He has been assessed at being at a medium to low risk of reoffending, but is unsuitable for community service work due to unresolved mental health issues. There is a lengthy report of Dr Stephen Allnutt, forensic psychiatrist, which expands on his history to a significant extent. In short, he started using methylamphetamine about ten years ago. He used it for about a year. He went to Peru three years ago and then stopped during his six months there. He started using it again when he came back to Australia.

12. There was a history which clearly justified Dr Allnutt's unchallenged diagnosis of psychosis at the time of the offending, but not at the time of the consultation. Dr Allnutt prescribes a strict mental health program, which clearly should be pursued, together with drug and alcohol counselling. There are medical records, which have been referred to by Dr Allnutt, going back as far as 1996 in New Zealand, describing significant drug use and it is the type of history which is often accompanied in this sort of case by significant criminal record associated with drug use. Fortunately, in this case, that has not occurred.

13. The notes from Niagara Lodge on the Central Coast indicate that he checked himself in of his own volition, and he has adjusted well and made major changes to his attitude. He has attended Alcoholics Anonymous and Narcotics Anonymous daily and he has displayed an increase in maturity and demonstrated humility and a wish to return to normal living and working. His history has been affirmed in an affidavit, which has not been the subject of challenge. I take account of his history of a long-term relationship with a former partner and a former business partner as well, and his reflections on the difficult time that he had while in custody.

14. He has a new partner, who has offered to provide support in a drug‑free environment and a stable home, and I accept his expressions of remorse and shame for the offending, which was, it seems, completely out of character. Those sentiments are supported by his partner and by his brother in law..

15. The Court's task in sentencing must, of course, be guided by s 3A of the Crimes (Sentencing Procedure) Act 1999 and the purposes of sentencing, which are often described as conflicting and include punishment, denunciation, the promotion of rehabilitation, and recognising the harm done to the victims of the crime and the community.

16. Although Ms Ghabrial for the offender somewhat bravely submits that the s 5 threshold has not been crossed, the combined effect of the criminality here is clearly, in my view, one which ultimately means that the s 5 threshold for a term of imprisonment has been surmounted. There is ultimately no contest from the Crown as to the service of any term other than by way of full‑time imprisonment as being within an appropriate discretionary range. To reach that view, I take account of the matters set out in the very comprehensive written submissions both of the Crown and Ms Ghabrial.

17. I take account of the early pleas of guilty, justifying a 25% discount for the utilitarian values of the plea. I take account of the significant time in custody, which is, as Ms Ghabrial points out, according to the authorities, often more onerous than post-classification custody, and also the quasi-custody involved in his full-time residential rehabilitation. As I said, the Crown acknowledges in De La Rosa terms the lessening of moral culpability and the need for reduced emphasis on general deterrence and denunciation in a case such as this, where there has been an episode of drug-induced psychosis.

18. Each of the principal offences for which the offender is to be sentenced were well below mid-range, in my view. To the extent that it is necessary to do so, I have indicated the facts of each, which indicate the seriousness of the offence or the offences. The offender has consented to a confiscation order and a compensation order to compensate the Four Seasons Hotel for the damage caused in the fire. As to the driving offence, there is no evidence of erratic driving or any impact with any other car, person or object, and the driving was over a short period and a short distance.

19. As to mitigating factors, I have referred to the pleas of guilty and the expressions of remorse and contrition, and the prospects of rehabilitation, and his relatively good prior record. As the Crown submits, in terms of aggravating factors, although there is no evidence of an intention to cause harm to other persons, it can be found that the setting of the fire was committed without regard for the safety of any other persons in the building, given that he left his room with the fire burning, not knowing whether it was likely to spread and to what extent. He was, as the Crown points out, serving s 10 bonds to which I have referred, at the time of this offending.

20. Clearly, an aggregate sentence of imprisonment is the appropriate way to deal with the matter. I take account of the parity principles which have been helpfully referred to by counsel, noting the paramount importance of community safety when considering an intensive corrections order. My view is that the matter should be dealt with in that way. Taking into account the 272 days already served in custody, the orders that I make are:

1. The offender is convicted of each offence.

2. There being no other appropriate penalty, I impose an aggregate sentence of imprisonment of 3 years.

3. The indicative sentences are:

1. Sequence 005, taking into account the Form 1 matters : 2 years, 6 months

2. Sequence 001: 6 months

3. Sequence 3: 9 months

4. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the court directs the sentence to be served by way of an intensive corrections order commencing today.

5. The offender is to report to the OIC at the City office of CCS by 5pm, Friday 12 April 2019.

6. The conditions to apply during the term of the order are as follows:

STANDARD CONDITIONS

1. You must not commit any offence.

2. The offender is to be placed under the supervision and guidance of the Community Corrective Services for as long as that Service deems necessary or desirable, but not exceeding the term of the order and the offender is to obey all reasonable directions of that Service (including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis) whilst under supervision and guidance.

ADDITIONAL CONDITIONS

3. Continue to undertake rehabilitation at Niagara Lodge Rehabilitation, and as directed by Community Corrective Services.

4. Abstain from the consumption of illicit drugs.

7. Failure to comply with the conditions of this order may result in further sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority or Commonwealth Director of Public Prosecutions if Commonwealth offence. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order.

8. The offender is to attend the Registry for finalisation of the intensive corrections order.

SUMMARY OFFENCE – Drive under the influence of drugs (H130348301/001)

1. I find the offence proven but without proceeding to conviction the offender is discharged pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999.

2. No penalty or bond imposed.

CONFISCATION AND COMPENSATION ORDERS

1. I make confiscation orders pursuant to the Short Minute of Consent Order dated 5 April 2019.

2. I make a compensation order for $1804.00 to be paid by the offender to the Registry, to be paid out to the Four Seasons Hotel.

Note – These extempore remarks have been revised without access to the court file.

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Decision last updated: 08 August 2019