DPP v McNabb [2021] VCC 477

1. Mr McNabb is now 27. He was born on 27 March 1994, these crimes occurred when he was 25. He is a labourer and lives at Point Cook. He pleaded guilty before this Court on 19 March 2021 to two counts on the Indictment K13003696.

1. First charge is pursuant to s.23 of the Crimes Act 1958 being conduct endangering persons, which occurred on 15 November 2019. The victim was Rosie Sherman[1] with whom Mr McNabb was in a prior relationship, which had ceased at least three months before these events. The maximum penalty for a breach of s.23 of the Crimes Act is five years' imprisonment.
2. Charge 2 is pursuant to s.17 of the Crimes Act, being a charge of aggravated burglary, committed two days later than Charge 1, at the premises of Lola Barton[2] who is the sister of the victim in the first charge. The penalty imposed for a breach of s.77 of the Crimes Act is indicative of the seriousness of the crime of aggravated burglary, a maximum penalty of 25 years imprisonment.
3. In addition, by way of plea on your behalf, Mr McNabb, Mr Blake entered a plea to the one summary charge, being possession of a controlled weapon, a breach of s.6(1) of the Control of Weapons Act for which the maximum penalty prescribed is 120 penalty units and/or one years' gaol.
4. Subsequent to these events, in fact three days later, Mr McNabb was arrested at the airport about to exit, or seeking to exit, back to New Zealand. Exhibit A was tendered by the Prosecutor who at the initial hearing was Mr Dober, Mr Mighell appears today, Mr Blake appearing on both matters on behalf of Mr McNabb. Exhibit A, a summary of facts, was prepared for the Court, the appropriateness of such for the purpose of this sentence was accepted by Mr Blake.
5. The relationship with Ms Sherman had been in existence for about seven months and had ceased approximately three months before the offending making up Charge 1. You can only classify this crime as indicative of immaturity, albeit that Mr McNabb was 25. Mr McNabb saw his ex-girlfriend with someone else, another male and the conduct endangering her person happened thereafter.
6. It involved Mr McNabb driving his vehicle attempting to cut the vehicle driven by Ms Sherman off, by pulling to the wrong side of the road and cutting in front of her. As I said there was a male in the car. There was a confrontation when the car was stopped. There was concern by the victim as to what Mr McNabb was seeking to do. Certainly she was terribly emotional, and indicated frantically to her sister that she thought that Mr McNabb was trying to kill her.
7. Eventually the victim escaped and got to her sister's home. There was a verbal argument that occurred thereafter. Disturbingly on both times, that is when Mr McNabb approached the car on the earlier occasion and when he came to the home he was holding a knife. Fortunately the police attended and no further exacerbation took place. One would have thought, especially as a person with no prior offences, that one would have understood thereafter how lucky one was that nothing more serious happened on that night.
8. However good sense was not with Mr McNabb at this period, because on 17th of November, two nights later, at about 8:30 pm he again presented himself at Ms Barton's place searching for, one imagines, the male who was previously in the car. Mr McNabb forcibly pushed his way past Ms Barton, and entered her house. He had no permission to enter the house. Mr McNabb enquired upon entering "Where is he? Where is he" and told Ms Barton that he was looking for the male to assault him. Ms Barton rang 000, told him to get out on a number of occasions, fortunately he did. Just that brief description is sufficient to indicate the seriousness of these charges. As I say, the charge of aggravated burglary is inherently serious simply from the maximum penalty prescribed by Parliament.
9. All I can say, Mr McNabb is, it is very lucky that you did desist. It is also lucky for you that you do not have any priors. Certainly your behaviour is something that you should be totally ashamed of for the rest of your life.
10. The pre-sentence detention served before Mr McNabb obtained bail was 84 days. There is a disposal order sought under s.9 of the Control of Weapons Act which Mr Blake has indicated to me that there is no objection to me signing. I note that despite the amendment to paragraph 19 of the prosecution opening which excluded the three knives mentioned in (a), (b) and (c) of that paragraph, the order that I have signed actually includes all the knives and I accept that that has been consented to.
11. Insofar as the pleas were concerned, as a result of the matters put to the Court by Mr Blake, I called for a community correction report and with that came a mental health report.
12. Exhibit B was also tendered which was the prosecution's sentencing submissions. There is, especially given the seriousness of Charge 2 as emphasised by the Court of Appeal and by the Prosecutor, a need not only for denunciation, specific and general deterrence, but one also has to note that this is partner related violence, which is abhorred by the Court and the community. It is necessary for men to be mature enough and grow up so that when they finalise a relationship that is it, they do not have any right to prevail upon their partners in to the future.
13. The objective gravity of Charge one, as put by the prosecution, is exacerbated by the fact that it related to a person who was a former part of an intimate relationship. As I have already said the behaviour itself was not only intimidating, but downright dangerous.
14. The Crown was accepting of the matters put insofar as principles set out by the High Court in Bugmy v The Queen [2013] HCA 37 and the propositions put as to R v Verdins [2005] VSC 479 , albeit it had a different view as to the applicability of limbs 1, 2, 3 thereof.

1. As I say, the plea by Mr Blake was set out as Exhibit 1 and he spoke to that submission. Essentially by way of overview, Mr Blake submitted that I was dealing now with a 27 year old person with a complex mental health profile, who as a young man lived in a household where abuse was effected, in particular on Mr McNabb's mother. Mr McNabb comes before this Court, despite that background, with no prior criminal history.
2. Exhibit 2 was the report of Ms Alison Mynard, clinical psychologist who conducts the clinical psychological service called Next Door Psychology. Such report was dated 25 January 2020 and I want to read from paragraph 5, firstly under 'Presentation' it was noted that Mr McNabb's intelligence was average, given his history and education and ability to articulate himself was the same. That he was, in that interview, insightful about his mental health issues at the time of offending, but only since being in custody after his psychosis had resolved and not being drug affected. His judgment in relation to his offending seemed to be impacted by psychosis and his deteriorated mood following the break-up of the relationship. He was in the interview, expressing high levels of stress, and found it hard to wind down especially at the time of these offences, overreacting to situations, showing nervous energy, agitation, low frustration and tolerance.
3. On p.6 under 'Diagnosis (DSM V)' Mr McNabb was diagnosed with social anxiety, post-traumatic stress disorder, pathological gambling disorder, drug induced psychosis, which was fortunately at the time in remission due to him being on remand, borderline personality traits and a stimulant use disorder, in particular methylamphetamine, cocaine and GHB. Again because of being on remand at the time, being in remission.
4. Under 'Opinion' on p.7 of Exhibit 2, Ms Mynard said:

'...Mr McNabb does have underlying mental health issues related to his early traumatic experiences and he tends back towards illicit substances as a means to cope with these uncomfortable and distressing symptoms. At the time of the offending, Mr McNabb's drug use was out of control, and he was also suffering from drug induced psychosis. His paranoia, and the threats he had received by the victim's associates and his drug affected state all contributed to his impulsive behaviour and reduced capacity to think clearly and have reasoned actions. In addition, his underlying PTSD symptoms are likely to have contributed to an ongoing sense of feeling that the world is dangerous, that he cannot trust others and he needs to be constantly on alert and hypervigilant to the next threat. At the time of the offending, although it appeared that Mr McNabb was jealous and possessive of his ex-partner, he denied this was the case, and instead, spoke of the threats he had received from her associates and his general paranoia from the psychosis he was suffering.'

1. In my view clearly that is what happened. You, Mr McNabb spoke apparently of threats and your general paranoia. The writer's opinion was there had been a complex array of factors that had influenced your behaviour. Clearly the most dramatic were your immaturity and capacity to revert to drugs to get you over difficulties. As was said by Ms Mynard on pg. 7:

'Being affected by ice, GHB and cocaine also would have impacted his reduced capacity for clear, reasoned and appropriate judgments in response to the situation he was in.'

1. I also agree with the Prosecution and I, despite the background, do not accept that propositions 1, 2 and 3 of Verdins are established as being causal in this matter. However no doubt Mr McNabb's drug background has impacted on him taking what seems to be a course of conduct which was completely alien to the manner in which he has conducted himself up to and prior to that time.
2. In addition, going back to the plea from Mr Blake, not only was the report of Ms Mynard relied upon, but also tendered, was the progress report from ASCO, dated 5 May 2020 as Exhibit 4, the CISP report of 11 May 2020, Exhibit 3, and the letter of support from Mr McNabb's father, Exhibit 5.
3. The matters put by Mr Blake were the plea of guilty, the fact of such plea being utilitarian in the circumstances, expressing remorse and demonstrating a willingness by you, Mr McNabb, to facilitate the course of justice and to accept responsibility. It was put to me that such factors also generate and indicate to the Court genuine remorse on your behalf. One hopes that is true.
4. It was submitted by Mr Blake that the Court should take the view, despite the seriousness of these crimes, that given the factors set out on p.4 paragraph c. by Mr Blake that in totality you, should be given an opportunity. In particular Mr Blake relied upon the fact that 16 months had passed, during which time you had not committed any further offence, and given your age and background that you were a strong prospect for rehabilitation. It seemed to me a professional reaction to that submission that the Prosecution put to the Court that you were an appropriate candidate for a community correction order either by way of combination with imprisonment or a punitive community correction order on its own.
5. It was as a result of the combination of those submissions that I sought the reports that have been tendered today, the first of those being Exhibit C which is the community correction report , dated 22 March 2021 and I thank the author for that matter.
6. Your background and the matters that I have already spoken about, I will not go through them again, have been considered and as a result thereof you were assessed as suitable. It is important that you understand that you have still been assessed as having a high risk of general reoffending. It is very important that you take this opportunity. You are obviously, Mr McNabb, not a person with whom drugs agree. When you are affected by drugs you are putting your own liberty in jeopardy. Can I tell you that if you come back here having breached a community correction order, that I am about to give you, there will be no need for counsel, do you understand?
7. OFFENDER: Yes, Your Honour.
8. HIS HONOUR: It was, given the recommendation of Ms Mynard, important to also have a mental health assessment screening, which was done as a result of the request made by the Court. The history of trauma and physical abuse from your family was noted and its impacts upon you. It is noted that you are very early on the path to be taken to ensure that you are not further affected by drugs. You have not participated in either a detox or a rehabilitation program. Despite your temper and substance issues, be it on the football field or in the community, fortunately for you, you have no prior offences.
9. However as noted at the bottom of the third page, albeit they are undetailed, it is the view of the senior clinician that further substance use will lead to impulsive behaviour and a deterioration in your mental health putting you at risk of harm to not only yourself, but others.
10. The assessment was that you require ongoing mental health treatment, that you need to see your general practitioner and psychologist to undertake a mental plea. That's why I raised the issue of concern that you had not apparently attended upon your psychologist. One of the recommended conditions in any community correction order will be that you are subject to supervision by Corrections Victoria.
11. Having considered the totality of all of these matters, in particular Mr Blake's submission and the matters that he relied on, I have found that it would be appropriate, despite the seriousness of these crimes, to pass a community correction order in addition to a period of imprisonment.
12. As I have indicated, and your counsel has accepted, I intend to make a condition of that order that you surrender your passport to a community correction department and that you be subject to an order under this community correction order that you do not leave this State without permission of Corrections Victoria, during the two years that I intend to impose.
13. Can I indicate to you that the conditions will involve 200 hours of community work. You do it at your leisure, but what I am intending is 100 hours in each year, that you be subject to appropriate treatment and rehabilitation for drug and alcohol issues, that you receive assistance for your mental health problems, that you receive treatment and rehabilitation to ensure that you do not reoffend and that you be subject to supervision of the community correction department insofar as the order is concerned.
14. It has been a difficult consideration, Mr McNabb. Essentially the Prosecution, I think professionally, left the matter to me. In the end, given fundamentally the fact that you do not have any priors, despite the seriousness of these crimes, I have taken the view that the period of imprisonment that I will impose in regard to both crimes is a period of 84 days, which will mean that as of today, given the declaration as to pre-sentence detention, you will not have to serve any further period of imprisonment.
15. I then intend to impose a community correction order in regard to both offences on the Indictment for a period of two years subject to the conditions that I have indicated and subject to a special condition about your passport and leaving Australia.
16. Mr Blake has indicated to the Court that you would be accepting of those provisions, is that right?
17. OFFENDER: Yes, Your Honour.

1. HIS HONOUR: Yes, if you would stand please. Mr McNabb, you will be convicted of those of these charges, and the summary charge.
2. On the first charge under the Indictment, that is the charge concerning your ex-partner of conduct endangering persons, you will be convicted and sentenced to a period of imprisonment of 84 days combined with a community correction order of two years.
3. That community correction order will be subject to the following conditions:
   • community work of 200 hours to be performed over the period of two years,
   • treatment and rehabilitation in regards to both drugs and alcohol; and
   • treatment and rehabilitation in regard to mental health, treatment and rehabilitation to reduce your reoffending.
4. In particular all of those programs will be subject to supervision of the community correction department. It is my intention by imposing that order, in particular given your background, given the fact that you have no priors and despite the seriousness of these crimes that in the interests of the community your rehabilitation is very important not only to yourself but to the community, so you are being given this opportunity.
5. I want to make it clear to you, you come back during the period of those two years having breached any of these provisions then you face going to gaol again, do you understand that?
6. OFFENDER: Yes, Your Honour.
7. HIS HONOUR: That does not, Mr McNabb, mean just that you do not commit further crime, it means that you comply with all of the conditions, all right.
8. In regard to the second charge in the Indictment you will also be convicted and sentenced to the same period of imprisonment of 84 days and placed on the same community correction order, which is permissible pursuant to s.41 of the Sentencing Act 1991.
9. In regard to the summary matter I order that you be sentenced to a period of imprisonment of one month.
10. I declare pursuant to s.18 of the Sentencing Act that the 84 days that you have served by way of pre-sentence detention be declared as service of this sentence and that the declaration to that effect be recorded in this Court.
11. I am required to tell you, Mr McNabb, the benefit of you pleading guilty. It is very difficult to adhere to Parliament's request, when the fundamental issues concerning you have a lot to do with rehabilitation, your relevant youth and your very difficult background. However doing as best I can, can I indicate that had you not pleaded guilty the period of imprisonment I would have imposed upon you is not 84 days and a community correction order, but one of 12 months gaol. So the point there is had you not pleaded guilty you would not be getting a sentence of 84 days and a community correction order for two years, but you would get a straight sentence of 12 months gaol. The importance of that is Parliament wishes for you to understand the benefit to yourself of pleading guilty.
12. I have signed the disposal order to which Mr Blake indicated that there was no objection and I think that is all I am required to do. Do either counsel wish me

to ‑ ‑ ‑ 13. MR MIGHELL: Nothing further, Your Honour. 14. MR BLAKE: The only matter, Your Honour, is just in relation to the community correction order. Given the recommendation of Corrections does Your Honour - or is it Your Honour's wish to credit any of the community ‑ ‑ ‑ 15. HIS HONOUR: No, it was not my wish, it should still be punitive. Mr McNabb, what your counsel is saying is that we can - it can be offset under the Act if you complete various amounts of time by way of treatment that can go against the order but given the serious nature of these matters it was very important I think to also have a punitive element and that is the reason for the 200 hours. Yes, well good luck, most importantly stay off those drugs, it is no good for you, all right. We do not want to see you here again, I say that in the nicest way. Yes. Thank you both, appreciate the submissions. We will get the order signed now. You might assist, Mr Blake, in those matters. 16. MR BLAKE: Certainly, Your Honour. 17. HIS HONOUR: Sorry, we started with technical issues and we have still got them. 18. MR BLAKE: I've taken quite extensive notes so perhaps if I an approach to ‑ ‑ ‑ 19. HIS HONOUR: Absolutely. 20. MR BLAKE: ‑ ‑ ‑ explain the order to Mr McNabb. 21. HIS HONOUR: Make use of the time, Mr Blake. Yes, we are in the process, Mr Blake. Take a seat, Mr McNabb. 22. MR BLAKE: Certainly. There was one matter, Your Honour, that just came to mind. 23. HIS HONOUR: Yes. 24. MR BLAKE: My understanding of these orders is that it's typical in the circumstances that the persons on the order are not to leave Victoria unless Corrections give leave. Now on my understanding ‑ ‑ ‑ 25. HIS HONOUR: That is what I have left. That is what I have left. 26. MR BLAKE: It wouldn't be the case that he'd get leave from Your Honour. 27. HIS HONOUR: No. 28. MR BLAKE: Okay. 29. HIS HONOUR: I have said without the leave of ‑ ‑ ‑ 30. MR BLAKE: Corrections. 31. HIS HONOUR: It may well be, Mr Blake, I am not sure, Corrections might not want the ‑ ‑ ‑ 32. MR BLAKE: The passport. 33. HIS HONOUR: Yes. So if they do not we will have to make some other arrangements. 34. MR BLAKE: Whether it be provided to the police. 35. HIS HONOUR: Police, maybe the informant but, you know, somewhere. 36. MR BLAKE: Somewhere safe. 37. HIS HONOUR: It is a valuable document so somewhere it has got to be put safely, does it not? 38. MR BLAKE: Certainly Mr McNabb has indicated that. 39. HIS HONOUR: I am not necessarily indicating that he could not, if he had something important to go home for, as long as he got permission for that it would be fine. 40. MR BLAKE: I just don't know practically speaking whether Corrections would or would not take his passport. 41. HIS HONOUR: I do not either, that is why I am anticipating perhaps we might have to make some alternative. My intent is that he does actually get what is being offered. It would be a tragedy if he just jumps on a plane and that is the end of it. 42. MR BLAKE: I don't know whether the Office of Public Prosecutions takes passports throughout the duration of the order. 43. HIS HONOUR: I thought we would not want to put the onus on them either since the Office of Corrections is to decide whether he should go out of Victoria or not, it seems to me that they are the ones who probably should hold the passport. 44. MR MIGHELL: Yes, Your Honour, I can indicate that the Office of Public Prosecutions doesn't hold onto passports. 45. HIS HONOUR: No, well we do not here either so - we used to years ago have our own safe and we used to hold things where now even, for example, where there is statements that are - have been taken in confidence of a person who has had a significant discount because of a statement made used to be held here but now it always goes back to the informant so. 46. MR BLAKE: Somehow I'd take more comfort in the former. 47. HIS HONOUR: Yes, well at least they knew they were in the safe. I am sorry, gentlemen, but - I am sorry, Mr McNabb, but we just have to get this done so I will go down while we get it. 48. (Short adjournment.) 49. HIS HONOUR: Yes. 50. MR BLAKE: Now may I approach my client, Your Honour? 51. HIS HONOUR: Absolutely, Mr Blake. I have got there he is to surrender his passport perhaps someone, your instructor, might make some enquiries as to whether we can send it from here or whether he can pick it up and take it himself. See they might just want to release it here, give it to him and then he then complies with the order. 52. MR BLAKE: I'm not even sure if the passport is here. It might be at Geelong as well. 53. HIS HONOUR: It is somewhere I think, is it not, as part of the bail? 54. MR BLAKE: It is, yes. 55. HIS HONOUR: Maybe the informant's got it. 56. MR BLAKE: It's been forfeited. 57. HIS HONOUR: Yes. 58. MR BLAKE: I'm not sure where it's being held but ‑ ‑ ‑ 59. HIS HONOUR: When you say forfeited you are saying it has been put in as part of the bail conditions? 60. MR BLAKE: Temporarily forfeited. 61. HIS HONOUR: Yes. All right, thank you both. Mr McNabb, all the best. I expect you to do very well, all right. Do not disappoint the Court and your supporters.