R v McLeish (No 2)
[2022] ACTSC 90
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v McLeish (No 2) |
Citation: | [2022] ACTSC 90 |
Hearing Date: | 28 April 2022 |
DecisionDate: | 28 April 2022 |
Before: | Mossop J |
Decision: | See [33] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – making a demand with a threat to endanger health, safety or physical wellbeing – plea of guilty – some criminal history – conditions of imprisonment on remand more restrictive than usual due to previous employment as a corrections officer – sentence of imprisonment imposed and partially suspended upon entry into a good behaviour order – community service imposed |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 10 Crimes Act 1900 (ACT), s 32(2) |
Parties: | The Queen ( Crown) Mark McLeish ( Offender) |
Representation: | Counsel C Wanigaratne ( Crown) D Berents ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Boxall Legal ( Offender) | |
File Numbers: | SCC 188 of 2021 SCC 189 of 2021 |
MOSSOP J:
Introduction
On 10 November 2021, the offender, Mark McLeish, pleaded guilty to one count of making a demand with a threat to endanger the health, safety or physical wellbeing of a person contrary to s 32(2) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 10 years’ imprisonment.
Facts
In May 2021, the victims, who I will refer to as LD and her partner, KC, were living at an address in Charnwood in the Australian Capital Territory (ACT). At this time, KC and the offender were friends.
Throughout the day on 11 May 2021, LD and KC received text and Facebook messages from the offender. In these messages, the offender stated that LD and KC owed him money. LD and KC had received similar messages in the preceding days since 6 May 2021. The offender demanded that LD provide him with a mobile phone. The offender also indicated his belief that two other persons were staying with LD and KC and also owed him money.
LD and KC were at home on the evening of 11 May 2021. LD’s three children were also present. At approximately 6pm, LD and KC were in the main bedroom. KC was lying on the bed and the head of the bed was positioned under the window. LD saw an object she believed to be a gun push through the open window and point towards KC. LD stated that the person holding the object came “pretty far in” through the window and she recognised him to be the offender.
The offender yelled something and LD yelled back that her children were at home. KC woke up from this yelling and felt an object slide across his face. KC then heard the offender make a demand in relation to the provision of money and the mobile phone. The offender said, “You’re a fucking dumb cunt.” The offender then briefly walked away from the window before walking back and pointing the object he was holding at LD and KC again. He then left the property.
LD called the police to report the incident and informed them that the offender had attended her home in relation to an old drug debt. LD described the offender to an officer and said she thought that the offender had been holding a shotgun.
The offender was arrested on 12 May 2021. The police seized a number of items including the offender’s mobile phone during the execution of a search warrant. The offender spoke to police under caution and agreed to unlock his phone. The phone contained text messages sent by the offender to a contact known as “Jezz”. These included the following messages: “I just went to [victims’ names] and they called the cops on me” and “Yeah dogs I’m doing to fuck them up. They owe me that phone 400+450+860 and my Tommy jacket. I’m going to get them bad…I’m going to get that phone today no matter what.” There were also messages sent to the victims between 6 May 2021 and 11 May 2021 relating to $1200 being owed to the offender and including the message, “I’m coming and I want my money be ready with it.”
In a recorded interview conducted during the search warrant, the offender purported not to recall sending certain of the messages that were sent prior to the offence.
The offender was on bail for a separate matter at the time of this offending.
Objective seriousness
The following matters are relevant to the objective seriousness of this offending:
(a)While the agreed facts identified that the offender made a demand with respect to the provision of money and a mobile phone no verbalised threat is recorded in the agreed facts. Rather, it is a threat implied from pushing what the victims believed to be a gun through the window and pointing towards KC.
(b)The object that one of the victims thought to be a gun was not proved beyond reasonable doubt to have been an object capable of inflicting harm.
(c)The interaction occurred at the victim’s home.
(d)The interaction was brief.
(e)There were children in the house, although it is not established beyond reasonable doubt that the offender knew they were there prior to attending.
(f)The offender was on conditional liberty at the time of the offending.
I would place this in the low to mid-range of objective seriousness for this offence.
Subjective circumstances
The offender’s subjective circumstances are set out in a pre-sentence report dated 26 April 2022. The description of the subjective circumstances of the offender recorded in the pre-sentence report was based upon what the offender told the author and was not otherwise corroborated.
The offender grew up in Sutton, New South Wales (NSW). Although he reported having four brothers and one sister, he was the only child born to his parents’ relationship and was raised as an only child due to an approximately 15-year age difference between him and his siblings. The offender described a mostly positive upbringing but noted recent memories of traumatic experiences with one of his brothers. The offender’s father died approximately four years ago. This had a significant impact on the offender and a consequent dispute about the offender’s possible inheritance led to conflict between him, his siblings and his mother. The offender indicated that although he recommenced communication with his mother approximately one month ago, he has not communicated with any other member of his family for about two years.
The offender reported an approximately 17-year-long de facto relationship that ended about four years ago. About four weeks ago, he commenced a new intimate relationship which he describes as positive and supportive. He has no dependents.
The offender has lived in his own ACT property for the past 13 years but has decided to sell his home so that after he completes his court obligations, he can relocate to NSW.
The offender completed school to the end of Year 12. He reported, however, that he was expelled from school for a period and stated that “school was difficult, and the principal had a grudge against me.” Since finishing school, the offender has been in full-time employment. He was an ACT Corrective Services corrections officer for about four years and six months but resigned three years ago to set up a telecommunications industry business and work as a technician.
The offender reported a manageable financial situation and did not disclose any history of problematic gambling.
The offender reported that he has disassociated from his anti-social friends over the past year. He indicated that his current socialising only involves his girlfriend and his two very close long-term friends. He reported that he does not currently engage in any organised recreational activities.
The offender denied misuse of alcohol or illicit substances. He reported that he consumed alcohol during his employment as a corrections officer but rarely does anymore. The offender reported using cannabis once with former friends, about 16 months ago.
The offender disclosed a history of mental health concerns relating to depressed mood. He has not sought professional assistance for these concerns. The offender indicated that his experiences in custody impacted him significantly. He is currently obtaining a mental health care plan through his general practitioner.
In relation to the charge of making a demand with a threat to endanger health, the offender appears to have been asked questions based upon an Australian Federal Police Statement of Facts. He denied certain aspects of that document but not in a manner that was inconsistent with the agreed statement of facts tendered at the sentence hearing. The offender was recorded by the author of the pre-sentence report as having minimised his involvement in the offending and claimed that his intention was only to have a discussion with the victims to request the money owed to him. That would be inconsistent with what he has admitted in the statement of facts.
The author of the pre-sentence report assessed the offender as at a medium/low risk of general re-offending and suitable for a low level of intervention by ACT Corrective Services. He was assessed as suitable for a community service order.
A reference from a friend of the offender asserted that the offending was out of character.
Criminal history
The offender has a criminal history. Offending prior to 2019 is not of significance. However, from 2019 his offending increased, consistent with a downward spiral in his life. In 2021, he was convicted in the ACT Magistrates Court of offences committed in 2019 of theft, burglary and unlawful possession of stolen property.
Plea of guilty
The offender pleaded guilty to the charge on 10 November 2021 after a criminal case conference following the matter being committed to trial in the Supreme Court in August 2021. It is appropriate that any custodial sentence be reduced by 15 percent on account of the utilitarian value of this plea.
Time in custody
The offender was arrested on 12 May 2021. He remained remanded in custody until he was granted bail by the Supreme Court on 13 October 2021. This is a period of 155 days. In July 2021, sentences of imprisonment were imposed for aggravated burglary and joint commission theft which ran from 11 May 2021 until 10 July 2021. They appear to have been imposed on the basis that the offender went into custody on 11 May 2021. The sentences were of 61 days, 60 days of which corresponded with the period in custody. The offender was subsequently sentenced to imprisonment from 1 July 2021 until 18 August 2021 for the offence of burglary. This is a period of 49 days and involves some concurrency between this sentence and the earlier sentences. Of the 155 days spent in custody, the period 12 May 2021 until 18 August 2021 (99 days) was not solely attributable to the present offending. That leaves some 56 days solely attributable to the present offending.
Consideration
The agreed statement of facts suggests but does not prove that the offending in the present case related to the enforcement of an old drug debt. The pre‑sentence report does not include any admissions by the offender of use or other involvement with illicit drugs. The pattern of offending since 2019 and the nature of the present offence would be consistent with it being drug-related, although that is not admitted or otherwise established. The motivation for the offending cannot, therefore, be established beyond reasonable doubt. However, that does not detract from the very strong public interest in protecting members of the community from extra-legal demands for payment of money and the making of threats associated with such demands. General deterrence therefore remains a significant sentencing purpose. Given the absence of evidence of reform, remorse or rehabilitation on the part of the offender, specific deterrence also remains a significant sentencing consideration.
The Crown provided a table of comparative sentences. Although the table included sentences from other jurisdictions under provisions that apply in those jurisdictions, I have confined my consideration to the ACT authorities that relate to s 32(2) of the Crimes Act as they represent current sentencing practice for this particular offence. Sentences on different provisions or provisions in other jurisdictions, while open to be taken into account, do not provide useful guidance in the present case. The authorities in the Crown table reflect starting points from in excess of four years’ imprisonment to wholly suspended sentences of imprisonment. A number of the cases involved physical contact with the victim, which makes the offending more serious. One of them involved demands for a substantial sum of money and threats of death and other extremely serious injury.
Evidence was put before the court in relation to the conditions of the offender’s imprisonment while detained on remand. I accept that the conditions of the offender during this period on remand were more restrictive than would have been the case had he not previously been employed as a corrections officer. His time in custody involved being kept, for his own safety, in the management unit. This involved restrictions on his interaction with other prisoners, more restrictive physical conditions and limitations on his entitlements while detained in that way. Any additional period of imprisonment would carry with it the same need for increased protection and hence a greater degree of restriction on the offender. The conditions in which he was detained are relevant both to assessing the punishment already imposed as well as the punishment that would be imposed if a further period of custody was required. It is also relevant to assessing the specific deterrence that would be involved in the suspension of a further period of imprisonment.
In my view, the threshold in s 10 of the Crimes (Sentencing) Act 2005 (ACT) has been passed in relation to this offending. That is because of the objective features of the offending and the very strong need for deterrence of this type of offending, whether or not it is associated with involvement in the illicit drug trade.
Having regard to the maximum penalty and the comparable cases in the Crown summary table, in my view the appropriate starting point is a sentence of imprisonment of 12 months. That is reduced to 10 months on account of the plea of guilty. Having regard to the circumstances in which he has been and would be imprisoned, it is appropriate that the sentence be suspended after the offender has served 56 days of imprisonment. That is the period he has previously spent in custody which is solely attributable to the present offending. Questions of totality do not, in my view, require concurrency between the present offending and the sentences imposed for the earlier offences.
In my view, in order to ensure that there is sufficient recognition of the gravity of the offending, a period of community service should also be imposed. I will impose a period of 100 hours of community service to be completed within 12 months.
Orders
The orders of the Court are:
1. On the charge of making a demand with a threat to endanger health (SCCAN 2021/140), the offender is convicted and sentenced to imprisonment for a period of 10 months which is to be suspended after having served 56 days imprisonment from 19 August 2021 until 13 October 2021 (which period has been fully served) on the condition that the offender enter into an undertaking to comply with his good behaviour obligations for a period of 24 months from today.
2. The good behaviour order is to be subject to the following additional conditions:
a)That he be on probation subject to the supervision of the Director‑General for a period of 24 months or such lesser period as determined by the Director‑General and obey all reasonable directions of the Director‑General.
b)That he report no later than 2 May 2022 to ACT Community Corrections at level 1, 249 London Circuit, Canberra.
c)That he perform 100 hours of community service within 12 months.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 4 May 2022 |
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