Director of Public Prosecutions v Mackenzie
[2019] VCC 986
•28 June 2019
| Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-00222
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ASHLEY MACKENZIE |
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| JUDGE: | HIS HONOUR JUDGE SMITH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 28 June 2019 |
| CASE MAY BE CITED AS: | DPP v MACKENZIE |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 986 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Sargent | |
| For the Accused | Ms A. Glikson |
1HIS HONOUR:
2Ashley Mackenzie, you have pleaded guilty to two counts of armed robbery, contrary to s.75A of the Crimes Act 1958. The circumstances of your offending are as follows. On 3 November 2018, you entered a convenience store in Bourke Street, Melbourne. You held a long, thin knife and showed it to a female shop assistant near the till area. You directed her to open the till and pointed the knife at her. She stepped back from the register. You ran around the counter, pointing the knife at her and further demanded that she open the till. She did so and you took a sum of money from the till and exited the store soon after. The incident was captured on CCTV, which was tendered as Exhibit D at your plea hearing. This conduct constitutes the offence of armed robbery: Charge 1.
3On 11 November 2018, you attended at a shopping centre complex: Melbourne Central. A female employed at one of the shops in that complex had just closed up the store at which she worked. She was making her way to the exit and was carrying a bag. You approached her, holding a knife in your right hand. You said to her: 'Give me the bag.' You repeated that demand and held the knife up to her face. She gave you the bag. You told her to stay where she was, whilst holding the knife out. You then ran off. That conduct constitutes the second offence of armed robbery: Charge 2.
4You were arrested on 12 November 2018. You participated in a record of interview with the police. You made full admissions regarding the first armed robbery, but denied any involvement in the second. You pleaded guilty to both armed robberies on 5 February 2019 at a committal case conference, on any view, at an early stage in the proceeding. The maximum penalty for the offence of armed robbery is 25 years' imprisonment.
5You are now aged 33, as you were at the time of the offending. You were born in Moe. You have a sister, a stepsister, a stepbrother, but have no contact with them. You never knew your father and you had a troubled relationship with your mother. She suffered from a chronic alcohol abuse, which led to your removal from her care at the age of two. You appear to have been raised in a number of foster homes.
6You attended primary school in various locations, including the Currajong Primary School in East Malvern, a school for children with social and behavioural difficulties. You attended secondary school sporadically, but did not complete Year 7.
7After leaving school, you had worked as a bicycle delivery driver. You have a 22 page record of criminal convictions in adult courts, going back to December of 2002. The vast majority of those convictions were for dishonesty offences. They include approximately 30 convictions for theft, four convictions for obtaining an advantage by deception, seven convictions for burglary, or aggravated burglary, multiple convictions for damaging or destroying the property of another, multiple convictions for assault, two convictions for making a threat to kill and six convictions for trespass. On any view, this is an extensive and serious criminal record.
8You have used cannabis on and off since the age of nine. You started using heroin between the ages of 11 and 13 and have used it intermittently since that time. You started chroming at the age of 15 and were chroming daily between the ages of 15 and 17. You have continued to do so on an ongoing basis since.
9You commenced using amphetamines when aged 23 and methamphetamine, or Ice, at the age of 24. You have used these substances intermittently. You have consumed alcohol while growing up and tended to binge. Your counsel informed me that you had ceased consuming alcohol some nine years ago.
10By November 2018, I was told that you had been free of drugs for some time, but regrettably, you relapsed onto heroin shortly before the offending for which you are currently before the court. You instructed your counsel that you committed the subject offences whilst under the effects of chroming.
11Counsel provided me with sentencing remarks of Judge Coish of this court, when he sentenced you in May 2005, following a trial in which you were found guilty by a jury of three counts of committing an indecent act in the presence of a child under the age of 16 and three counts of false imprisonment. Both those crimes had been committed by you in late 2003, when you were aged 18. The relevance of those sentencing remarks is really only to your upbringing and your mental health state at that time.
12In the matter before Judge Coish, a report from the psychiatrist Dr Senadipathy had been tendered. Dr Senadipathy considered that you were a young man with a severe antisocial personality disorder and diminished cognitive abilities, probably due to chronic inhalant abuse and heavy cannabis use. He thought it was probable that your higher cognitive functions were compromised, although there was no clear clinical evidence to support any significant cognitive impairment. He noted that custodial life had become familiar to you and that you had learned to be comfortable in that setting. You had told him that you failed to see what society had to offer to you, in terms of a stable life, or promising future. You were apparently resigned to prison life and were sceptical of any suggestion of rehabilitation. He queried whether prison had any deterrent effect on you. Nevertheless, he considered that prison would probably provide you with the opportunity to access professionals and rehabilitation facilities and abstain from further substance use. He considered that your prospects for rehabilitation were, as he put it, cloudy.
13Your counsel conceded that these were very serious offences. The two victims were indeed soft targets and would have experienced considerable fear as a result of your offending conduct. It is likely that the two armed robberies were committed in order to fund further illicit substance abuse.
14I accept that you pleaded guilty to these offences at an early time. This probably shows some remorse on your behalf for your offending conduct and the effect that it would have had on the two victims. Further, your plea has utilitarian value in that witnesses will not be required to give evidence at your trial and court resources will be spared. I accept that you acted alone and not in company. I accept that you did not use a weapon to commit injury during these robberies, although you did threaten to do so.
15Your counsel submitted and I accept that your offending was unsophisticated, amateurish, involved limited planning and was highlighted by your failure to disguise your face, or wear any gloves during the offending. Whilst these were features of your offending, I do not consider that they reduced the seriousness of the offences, or your culpability for them.
16I accept that you come from a very disadvantaged background and that such a background often explains and contributes to an offender's later criminal behaviour. However, your background cannot be viewed as a valid excuse for such offending behaviour.
17You also have some convictions for sexual offences and are currently classed as a serious sexual offender. Accordingly, you had been categorised as a separation prisoner. I would normally accept that imprisonment for you is more onerous than for others, because of the necessity to protect you from other prisoners. However, I do note the comments of Dr Senadipathy, that you have become comfortable in the prison environment.
18On my calculations, you appear to have served some 213 days by way of presentence detention, not including today. Your counsel informed me that you had been previously released on parole in respect of other sentences with, as she put it, somewhat mixed results. She submitted that it would be difficult to predict the attitude of the parole board to releasing you in the future on further parole.
19Shortly before you committed these offences, you had been released from custody in relation to other matters. I was informed by your counsel that at the time, you were sick from withdrawal from drugs, you had no housing, you had no community support of any type at that time. It was in those circumstances that you committed these two armed robberies.
20It would, in my opinion, be preferable if, at the time of your release from custody from the sentence that I intend to impose, you were under some form of supervision and receiving some advice concerning the availability of accommodation and medical treatment. You have had a significant hard drug addiction for many years now.
21In those circumstances, it is difficult to have confidence in your prospects for rehabilitation. That is especially so if, at the completion of a sentence, you are simply released back into the community without accommodation, employment or medical advice. Given your circumstances, I consider that the primary sentencing principles relating to these matters are protection of the community and deterrence, both specific and general.
22On the charge relating to the first armed robbery on 3 November 2018, you are convicted and sentenced to two years' imprisonment. This shall be the base sentence. In relation to the second armed robbery occurring on 11 November 2018, you are convicted and sentenced to a term of imprisonment of two years. I direct that one year of that be served cumulatively to the base sentence.
23It follows that I am sentencing you to a total effective term of imprisonment of three years. I direct that you shall not be eligible for parole until you have served 18 months of that term. I have imposed a somewhat lesser non-parole period than might otherwise be the case. It seems to me that your prospects of rehabilitation are poor, unless you can, in some way, become free of your addiction to illicit drugs. This appears to be more likely to occur if you are subject to some form of supervision by a parole officer, but only time can tell. As I have said, there is no certainty of you getting parole, in any event.
24It is my view that if you are simply released back into the community following a period of custody without supervision, you would be virtually certain to return promptly to abuse of illicit drugs, which you are likely to fund by commission of further criminal offences.
25Counsel are in agreement that you have served a period of 213 days in custody in relation to these offences and I direct that such period be deemed as served in relation to this sentence and recorded as such in the records of this court.
26I have been made aware this morning that on 12 June 2019, you were convicted of an offence of failing to report within seven days of your release from custody, as required, under the Sex Offenders Registration Act 2004 and you were sentenced in the Magistrates' Court at Melbourne on that date to a term of imprisonment of six months concurrent upon other sentences imposed.
27I direct that two years and nine months of this sentence be served cumulative upon the sentence imposed by the Magistrates' Court on 12 June. Pursuant to s.6AAA of the Sentencing Act, I declare that had you not pleaded guilty to these offences, but had been found guilty of them, I would have sentenced you on an aggregate basis to a total effective term of imprisonment of four years.
28Now, there was some - well, perhaps before I go to ancillary orders, Ms Sargent, do you see any suggestion of me wandering into legal error in relation to the manner in which I have treated the Magistrates' Court sentence?
29MS SARGENT: No, no Your Honour. It's difficult, ordering a cumulative sentence where Your Honour's sentence is longer than the one imposed by the magistrate.
30HIS HONOUR: Yes, but what do you do? I don't know that it should be served concurrently with it.
31MS SARGENT: No Your Honour. In my submission, some cumulation is warranted, given the completely different nature of the offences.
32HIS HONOUR: Yes.
33MS SARGENT: Is it Your Honour's intention that three months of the current sentence in relation to the sentence that
Mr Mackenzie is already serving be served ‑ ‑ ‑34HIS HONOUR: Yes.
35MS SARGENT: ‑ ‑ ‑ and effectively that - yes, it's difficult to set out, but effectively three months of the current sentence is to be served concurrently with Your Honour's sentence.
36HIS HONOUR: Yes, it would be.
37MS SARGENT: Yes.
38HIS HONOUR: Perhaps that's a better way of putting it, that three months of the sentence of three years that I've imposed be served concurrently with the sentence imposed by the Magistrates' Court at Melbourne on 12 June.
39MS SARGENT: Yes, thank you Your Honour.
40HIS HONOUR: Thank you.
41MS SARGENT: The only other matter, Your Honour, when Your Honour was making a s.6AAA declaration of four years' imprisonment, did Your Honour - I might have missed Your Honour making a non-parole period ‑ ‑ ‑
42HIS HONOUR: I didn't. I'm not sure I would have imposed one. You say must?
43MS SARGENT: I'll just confirm, Your Honour.
44HIS HONOUR: Yes.
45MS SARGENT: Thank you.
46HIS HONOUR: Now, I could have sworn there was a disposal order somewhere?
47MS SARGENT: There was, Your Honour and there was a disposal order e-lodged.
48HIS HONOUR: I did query the disposal order, I must say. Have you got another copy of it there?
49ASSOCIATE: I can print it off right now.
50HIS HONOUR: Thank you.
51MS SARGENT: Just for the sake of completeness, Your Honour, in respect of the non-parole period, Your Honour is correct. Section 11(1): "If a court sentences an offender to be imprisoned in respect of an offence for - paragraph, sub-s.B, a term of two years or more, the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole, unless it considers that the nature of the offence, or the past history of the offender make the fixing of such a period inappropriate." So if Your Honour considers that second half, without the inappropriateness of it ‑ ‑ ‑
52HIS HONOUR: This is s.11 to sentencing?
53MS SARGENT: That's so, Your Honour.
54HIS HONOUR: Let me have a look here. Thank you. Yes. This is in relation to s.6 AAA.
55MS SARGENT: Yes Your Honour.
56HIS HONOUR: Yes, I would have imposed a head sentence of four years and a non-parole period of three and a half years.
57MS SARGENT: Your Honour pleases.
58HIS HONOUR: Yes. The disposal order that I've got before me, relates to Mr Mackenzie's black beanie, a Winchester brand hooded jumper and a carry bag with a white Nike logo. Now, is the carry bag the one he took from the second victim?
59MS SARGENT: No Your Honour, that's the bag worn by Mr Mackenzie during the ‑ ‑ ‑
60HIS HONOUR: Well, why do they have to be disposed of? Why shouldn't they just be returned to him? They're items of - effectively items of clothing, aren't they?
61MS SARGENT: They are, Your Honour.
62HIS HONOUR: It's not like a knife, or offensive weapon, which ‑ ‑ ‑
63MS SARGENT: No, that's so, Your Honour. These are exhibits seized by the police.
64HIS HONOUR: Yes.
65MS SARGENT: They have to be either disposed of by order of the court, or returned to the offender if Your Honour isn't minded to make the order.
66HIS HONOUR: Yes, I'm not minded to make the order and I direct that they be returned to him.
67MS SARGENT: As Your Honour pleases.
68HIS HONOUR: All right. Anything else that counsel think I've overlooked, or need to attend to?
69MS SARGENT: No Your Honour.
70MS GLIKSON: No Your Honour.
71HIS HONOUR: Good, thank you. Mr Mackenzie can be taken downstairs, thank you and we'll adjourn until 10.30.
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