DPP v McIntosh [2021] VCC 1242

Cases: Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571; R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

1 Bradley McIntosh, you have pleaded guilty to an indictment containing a single charge of attempted armed robbery, contrary to s 75A and s 321M Crimes Act 1958. This offence carries a maximum penalty of 20 years' imprisonment.

2 You have also consented to this court hearing and have pleaded guilty to a summary charge of committing an indictable offence whilst on bail, contrary to s 30B Bail Act 1977. This offence carries a maximum penalty of 30 penalty units or three months' imprisonment.

3 The circumstances of your offending are set out in the prosecution opening dated 20 July 2021.[1] Your counsel indicated that the opening was an agreed document. I will set out the facts of your offending briefly.

4 At the time of the offending, you were aged 28, having been born on the 11 May 1992. On the night of the 11 November 2020, you planned to commit an armed robbery in the home of the victim, Mr Lavington. The victim was well known to you; you had met one another some 10 years ago. You were aware that the victim had cannabis in his house, and it was your intention to steal some of it by threatening the victim with force. At about 12:30pm on the 12 November 2020, at your request, your housemate drove you to the victim's house. You told your housemate not to park in the driveway of the victim's house. Instead, you told him to park in a nearby church carpark. You walked to the victim's house and knocked on the front door. You had a screwdriver in your pants that you intended to use to threaten the victim with at the time of your offending. The victim was expecting you as you had organised with him to play Call of Duty. At the time of your visit the victim was present in the house with his female friend. Mr Lavington opened the front door and went back into his lounge room and sat down. You entered the lounge room and muttered under your breath 'I'm gonna rob you' to the victim. The victim replied, 'no you're not.' You again repeated, 'I'm robbing you' and produced the screwdriver. Mr Lavington stood up and you punched him to the head. The victim then began punching you and the two of you started scuffling in the lounge room. The victim and his female friend were asking you why you were doing this. The victim said to you, 'I'm gonna rip into you. Get out. You're not gonna rob me.' You and the victim were crashing around the lounge room and against the walls as you fought. The female friend intervened and helped Mr Lavington push you out of the front door. You picked up the screwdriver which was on the ground under the victim. You then left, jumping a fence, and going back to the church carpark. You got into your housemate's car who then drove you home. Mr Lavington suffered minor scratches and grazes over his body. These are the facts that give rise to the attempted armed robbery charge. At the time of this offence, you were on two separate grants of bail in relation to other offending. On 25 September 2020 you were granted bail by Knox Police Station. On 5 October 2020 you were granted bail by Ringwood Police Station. (Summary charge of committing an indictable offence whilst on bail)

5 Mr Lavington reported the matter to the police. At approximately 1:55pm police observed you walking towards your home address and arrested you. The police asked you if you had any weapons on you. You told the police you knew what they were talking about and that you had a large screwdriver which was now on your bed in your bedroom. The police, with your written consent, entered your bedroom and seized the screwdriver.

6 You were conveyed to Ringwood Police Station where you were interviewed. During your interview, you were fully cooperative and made full admissions to the offending. You said that you had gone to the victim's house the previous day and purchased cannabis from him. You had organised to go around to the victim's house the following day, intending to rob him. You had taken the screwdriver to threaten the occupants of the house with it and steal the cannabis. You had known the victim since he was aged 13 or 14. Your account to the police of what occurred when you got to the house was in similar terms to what the victim alleged.

7 You have been on remand in custody since your arrest on 12 November 2020. You have spent 288 days in custody. However, on 31 March 2021 you were sentenced to a term of 7 days imprisonment in respect of the matters for which you were on bail at the time you committed the attempted armed robbery. Therefore, you have accumulated 281 days of pre-sentence detention.

8 Mr McIntosh, you have admitted a criminal history dating back to 9 October 2013. On 9 October 2013 for an offence of contravening a family violence intervention order you were sentenced without conviction to an adjourned undertaking. On 20 March 2014 at this court, you were sentenced to a 12-month community correction order for an offence of sexual penetration of a child under the age of 16. A month later, you were sentenced to a further community correction order for an offence of committing an indecent act with a child under the age of 16. Both these orders gave you the opportunity to undergo treatment for drug and alcohol abuse as well as assessment and treatment for matters relating to your mental health. Although you complied with these orders, regrettably the underlying issues relating to drug abuse and mental health issues remain. On 15 April 2016 you were sentenced to an adjourned undertaking with conviction for an offence of resisting an emergency worker on duty. On 18 April 2017 you were again placed on an adjourned undertaking with conviction for possessing cannabis. On 11 March 2020 for offences of possessing cannabis, committing an indictable offence whilst on bail and three offences of contravening a bail condition, you were sentenced to one day in custody. On 14 May 2020, you were sentenced to an aggregate term of 40 days imprisonment for offences which included an offence of theft of a motor vehicle, six offences of failing to comply with your reporting obligations, two offences of committing an indictable offence whilst on bail and contravening a condition of bail.

9 You are not being sentenced for your prior offending; however, your prior offending is relevant to the assessment of your rehabilitation prospects and in imposing a sentence that specifically deters you from re-offending.

10 Mr Lavington has declined to make a victim impact statement. However, one can infer that the experience he endured would have been, at the very least, upsetting for him as well as his female friend. He was expecting you to come around to play Call of Duty with him. Instead, you greeted him with a large screwdriver and a threat to rob him, culminating in a scuffle.

11 Mr McIntosh you are now 29 years old. Your parents separated when you were born. You have had no relationship with your biological father. Your mother had told you he was an alcoholic. You did meet your father on two occasions when you were aged 12. Your father made it clear to you that he wanted nothing to do with you.

12 You attended a local school in Glen Waverley. As a child, you enjoyed a very close relationship with your maternal grandmother. Her passing away when you were only six years old left a void in your life. Your mother re-partnered when you were aged 11 and in Grade 5. As a result, you and your mother moved to Clayton to live with your stepfather. You completed Grade 6 at a primary school in Clayton. You were subject to persistent bullying at school and had very few friends. Your life deteriorated after your stepfather came into your life. He was an alcoholic and he abused drugs. You saw him assault your mother. You were also the victim of his violence. You recall being awoken by him and then being assaulted. You observed him on one occasion throw a TV out of the window. Regrettably, on one occasion your stepfather's friend entered your room and sexually assaulted you by fondling your genitals. As a result of the difficult life at home you began staying away, sometimes for the entire night. You started associating with older people and began using illicit substances with them.

13 You attended a secondary college but was often truant. Ultimately, you left school when you were in Year 9. At the same time, aged 15, you left home. Your mother also left your stepfather. You struggled with finding stable accommodation and resided in boarding houses, crisis accommodation, residential care units, sometimes with your mother and even slept rough on the street.

14 You began using cannabis at the age of 12. After you had left home you would often chrome and drink regularly. From the age of 19, you began using methylamphetamine. You have also used a range of other drugs, including cocaine, heroin, GHB, Valium and Xanax. Between the ages of 18 and 21 you attended a drug rehabilitation centre on three separate occasions ranging from a period of one week to six months. Unfortunately, you have been unable to maintain complete abstinence from illicit substances. You have in the past experienced drug-induced psychosis requiring hospitalisation. You have not used ice since your release from prison in June 2020.

15 Your employment history is very limited. It all pre-dates your 21st birthday. In total you worked in three jobs spanning a total of six months.

16 You have a half sister who is now aged 16. I am told you adore her and hope to be able to support her once you are abstinent from drugs. You also have a stepsister now aged 20.

17 I have had regard to Ms Carla Lechner's psychological report dated 25 July 2021.[2] Ms Lechner sets out your background and emphasises the psychological impact of the physical and sexual abuse that you suffered in your formative years. She states that you have symptoms consistent with a complex post-traumatic stress disorder. Although no formal assessment was undertaken, Ms Lechner formed the impression that you are of, 'low average' intelligence. She states that you impressed as socially and emotionally immature. She opines that you lack a range of adaptive coping skills having learnt to block out internal distress with drug use from an early age. You have a low tolerance for internal distress. Ms Lechner adds, you will remain at a risk of re-offending if your underlying mental health and substance abuse issues are not addressed.

18 The court must also have regard to the objective gravity of the offending for which you now fall to be sentenced.

19 Attempted armed robbery is an intrinsically serious offence. This is clearly demonstrated by the maximum penalty fixed by Parliament, namely 20 years' imprisonment.

20 Due to withdrawal symptoms, you decided to steal cannabis from the victim's home by force. The offending was planned the night before. You armed yourself with a large screwdriver. Of course, the fact you had a screwdriver is an element of the offence and I do not treat it as an aggravating factor. The offending took place in the home of the victim where he was entitled to feel safe. The offending occurred whilst you were subject to two sets of bail. Bearing in mind I have taken the fact you were on bail into account as an aggravating factor, I will impose a sentence on the summary offence of committing an indictable offence whilst on bail which will not lead to double punishment. I do accept that the offending was not particularly well-planned. It was relatively unsophisticated.

21 I take into account a number of matters raised by your counsel, Mr Hocking in his written[3] and oral plea. Ms Fargher, on behalf of the prosecution, took no real issue with the matters raised.

22 I accept that your plea of guilty was entered at the earliest opportunity and entitles you to a significant discount in your sentence. Your plea of guilty has saved the community the time and cost of a trial and has spared the victim and his female friend from having to give evidence. Your plea has facilitated the course of justice and you have taken responsibility for your actions. The utilitarian benefit of your plea assumes much greater significance in the current COVID-19 environment when the court is facing an increased backlog of trials.[4] I also accept that your plea of guilty is demonstrative of genuine remorse.

23 Your remorse is further demonstrated by your complete cooperation with the police following your arrest. Your candidness allowed the police to retrieve the large screwdriver that you used during the offending. In your police interview, you made full and frank admissions. You expressed your remorse to Ms Lechner for what you did and its impact, not only on the victim, but also his female companion. Your mother also refers to the remorse that you have expressed to her. In addition, she sheds light on your difficult background. You are currently enjoying a good relationship with her; she supports you wholeheartedly.[5]

24 I also take into account your very difficult and traumatic upbringing. Your biological father played no role in your life. The closeness of the bond you had with your grandmother was short-lived. No doubt, you were hoping to form a good bond with your stepfather when he came into your life at the age of 11. However, it is plain that you were scarred and traumatised by the violence that was perpetrated by him upon you and your mother. Further, you observed your stepfather abuse drugs and alcohol. A friend of your stepfather sexually abused you. Your difficult background allows me to assess and reduce your moral culpability for your offending.[6]

25 I accept, in accordance with limb 5 of Verdins,[7] the burden of imprisonment will weigh more heavily upon you as a result of your complex post-traumatic stress disorder symptoms. In addition, your time in custody has been spent mainly in protection. It has also been onerous due to the Covid-19 pandemic. You have endured periods of lockdowns. You have had limited access to courses and programs. Face-to-face visits have been significantly curtailed. You are in an environment where there is a risk of contracting the virus over which you have little control.

26 General deterrence and denunciation are important sentencing considerations in this case. An armed robbery, even though it may not have reached fruition, is an offence that strikes fear into the minds of those upon whom it is perpetrated and is a cause of concern for the community generally. Members of the community should be able to go about their business and enjoy their home without being confronted and placed in fear by an armed offender. The sentence I impose must seek to deter other like-minded persons from engaging in this type of conduct and make clear, on behalf of the community, that it will not be tolerated.

27 Bearing in mind your criminal history and your continued use of drugs despite opportunities to address your issues, there is also a need to deter you from engaging in this or any similar conduct in the future. I must also bear in mind the protection of the community.

28 In terms of your rehabilitation, it really does hinge on you being able to refrain from drug use and seeking appropriate treatment for the psychological trauma you have endured in your formative years. You told Ms Lechner that upon your release, you are keen to stay off illicit substances, except that you are likely to resume smoking cannabis. Mr McIntosh you have been clean from drugs for the last 288 days. It is vital, if you are to live a law-abiding life, that you maintain the progress you have made in prison. At this stage, I regard your prospects of rehabilitation as guarded.

29 Both Mr Hocking and Ms Fargher made sensible sentencing submissions. They submitted that whilst a term of imprisonment was necessary, all sentencing objectives could be met by the imposition of a combination sentence. I agree with that submission. Deterrence both general and specific, denunciation, and protection of the community needs to be balanced with ensuring your rehabilitation. Your successful rehabilitation when you are still only 29 years of age will assist in protecting the community.

30 Having carefully considered all the matters raised in this case, and weighed the various sentencing considerations, I sentence you, Mr McIntosh as follows:

31 On Charge 1, the attempted armed robbery, Mr McIntosh will be convicted and sentenced to a term of 281 days' imprisonment, in combination with a two-and-a-half-year community correction order. ('CCO')

32 On the summary charge of commit indictable offence whilst on bail, you will be convicted and sentenced to a term of seven days' imprisonment which is to be served concurrently with the custodial portion of the combination sentence imposed for the offence of attempted armed robbery in Charge 1 of the Indictment.

33 Every community correction order has core conditions that you must comply with. They are as follows:

34 You must not commit any offence punishable by imprisonment.

35 You must comply with any obligation or requirement prescribed by the regulations.

36 You must report to and receive visits from the Secretary.

37 You must report to the community corrections centre within two clear working days of being released from custody at the expiration of the custodial portion of the sentence.

38 You must notify the Secretary of any change of address or employment within two clear working days of the change.

39 You must not leave Victoria except with the permission of the Secretary.

40 And, finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure your compliance with the order.

41 In addition to the mandatory core conditions, the community correction order will include the following special conditions:

42 First, you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed.

43 Second, you must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed.

44 Third, you must undergo any mental health assessment and treatment as directed.

45 Fourth, you will be subject to supervision as directed for the duration of the community correction order.

46 Fifth, you will be subject to judicial monitoring. That means I will be keeping an eye on your progress. I direct that the first judicial monitoring hearing will take place at 9.30 am on Monday 6 December 2021. You must attend court on that day. I will be assisted by a progress report from Corrections prior to the hearing.

47 You must report to Ringwood Justice Service Centre by telephone within two working days upon your release from custody.

48 Mr McIntosh, you need to understand that if you were to breach the community correction order in any way, either by committing another offence or by not complying with any of the core conditions or any of the special conditions, then you could be charged with the offence of breaching the order.

49 The offence of breaching a community correction order itself carries a maximum penalty of three months' imprisonment. So were you to breach the order, you would need to come back to court and face sentencing for that breach offence. In those circumstances, you could also be resentenced for the offence for which you were placed on the order originally, namely the attempted armed robbery. You would then face the very real possibility of being sent back to prison.

50 So, there are serious consequences attached to any breach. Do you understand that?

52 HIS HONOUR: Do you also understand all the conditions of the proposed community correction order?

54 HIS HONOUR: Do you consent to being placed on a combination sentence which includes a community correction order in the terms I have outlined and to abide by all of its conditions?

56 HIS HONOUR: Thank you. Your verbal consent will be noted on the court record and is sufficient in circumstances such as this where an accused is appearing by way of a video link.

57 Pursuant to s 18 Sentencing Act 1991, the period of 281 days of pre-sentence detention, not including today's date, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the court records.

Section 6AAA declaration

58 Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had Mr Mcintosh pleaded not guilty and been found guilty, he would have been sentenced to a term of 2 years and 6 months' imprisonment with a non-parole period of 18 months.

59 Pursuant to s 77(1) of the Confiscation Act 1997, I grant the disposal order in relation to the screwdriver. Ms Fargher, does that deal with everything?

60 MS FARGHER: I apologise, there is nothing further.

61 HIS HONOUR: Thank you. Anything from you Mr Hocking?

62 MR HOCKING: No, Your Honour. As Your Honour pleases.

63 HIS HONOUR: Thank you. Mr Hocking, would you like a moment to speak to Mr McIntosh?

65 HIS HONOUR: Yes, that is fine. If you could adjourn the court.

[4] See Worboyes v The Queen [2021] VSCA 169, [35] - [39].

[6] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

[7] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.