Director of Public Prosecutions v Mackinnon
[2018] VCC 1526
•21 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-00305
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACK MACKINNON |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 September 2018 | |
DATE OF SENTENCE: | 21 September 2018 | |
CASE MAY BE CITED AS: | DPP v Mackinnon | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1526 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Causing injury recklessly – Armed robbery – Plea of guilty.
Legislation Cited: Road Safety Act 1986; Sentencing Act 1991.
Cases Cited: R v Verdins [2007] 16 VR 269.
Sentence: 4 years’ and 6 months’ imprisonment with a non-parole period of 3 years’ imprisonment; 131 days pre-sentence detention; 6AAA declaration: 7 years’ imprisonment with a non-parole period of 5 years’ imprisonment; Licence and permits cancelled and disqualified from obtaining for 12 months; Forensic sample order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Karamicov | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr J. Fitzgerald (Plea) Ms J. Munster (Sentence) | Victoria Legal Aid |
HIS HONOUR:
1 Jack Mackinnon, on 13 September 2018, you came before me to conduct your plea in respect to one charge of causing injury recklessly and one charge of armed robbery. The maximum penalty for causing injury recklessly is five years’ imprisonment, while the maximum penalty for armed robbery is 25 years’ imprisonment.
2 You admitted your criminal record.
3 Tendered as Exhibit A and read aloud in Court was the summary of prosecution opening. In summary, some time prior to 4.40pm on 25 November 2016, you called a cab that picked you up on Waverley Road in Mount Waverley. You got into the front seat of the taxi and told the driver to take you to the city. En route to the Monash Freeway the cab became stationary at the traffic lights at the intersection of Waverley and Warrigal Roads at which time, without warning, you struck the taxi driver to the left side of his head and body. You used your right fist to strike these blows. However, you held a knife in your fist when you struck the victim and the victim suffered lacerations to the left side of his head behind his ear and a stab wound to the left side of his body when he raised his arms in an effort to deflect your blows to his head.
4 The taxi driver grabbed the keys from the ignition and got out of the car. You moved into the driver’s seat of the taxi and assumed control of the car. The car moved south along Warrigal Road to the Monash Freeway underpass.
5 The taxi driver stood bleeding on the median strip on Warrigal Road and flagged down a passing police vehicle. You were pursued by Constable Hammill who chased you and arrested you as you attempted to escape by running across the exit ramp of the Monash Freeway.
6 A search for the knife failed to locate it.
7 When you were arrested, it was plain to the police that you were unfit to be interviewed because you were drunk. At the police station you underwent a breathalyser test and the reading was 0.29 per centum.
8 When you were fit to be interviewed, under caution you told police that you used the pocket knife to instil fear in the taxi driver and that after the taxi driver got out of the cab, you jumped into the driver’s seat with the intention of driving the cab away. However, you denied using the knife to cause injury to the cab driver. You suggested to the police that the cab driver may have caused the injury to himself in order to make the incident to look worse for you. You identified yourself in the still CCTV images obtained from the taxi and admitted to having drunk three bottles of white wine prior to the incident.
9 The taxi driver received a cut behind his left ear and a stab wound to the left side of his body under his arm.
10
You were remanded in custody on the day of your arrest, 20 November 2016. You were granted bail by the Magistrates’ Court on 9 February 2017 accordingly, up until that date you had spent 82 days by way of pre‑sentence detention. You absconded and went to Western Australia and to Sydney in November 2017. You subsequently failed to appear before the Magistrates’ Court of Victoria in respect of unrelated matters as well as this Court on
12 February 2018 in respect of this matter. You were arrested in Sydney on
2 August 2018 and extradited from New South Wales and appeared in the County Court at Melbourne on 6 August 2018. Accordingly, as at the date of your plea, you had spent 124 days by way of pre‑sentence detention.
11 There was no Victim Impact Statement tendered during the course of the plea although the victim and his wife were present in court.
12 Jack Mackinnon, you are 24 years of age. You were born in Mount Isa, Queensland. Your parents separated when you were about six years of age and thereafter you lived with your mother who re-partnered. When you were about eight years of age, your family moved to the Atherton Tablelands and your natural father moved to Townsville. Your natural father also re-partnered and you have a half-sister arising out of that second relationship.
13 You went to school at Atherton State High School. You lived on a large rural property and your mother worked as a psychologist while your stepfather worked as a carpenter.
14 While at school, you worked on a part time basis stacking shelves at the local Big W store and you also did some seasonal work on local farms.
15 You had a distant relationship with your stepfather, and discipline in the house was imposed by your mother.
16 Tendered as Exhibit 3 was a letter from your mother dated 12 September 2018. In the letter she writes:
“At around age 15 – 16 years, Jack began experimenting with cannabis which produced noticeable changes in his behaviour and attitude. Jack’s behaviour became progressively oppositional and difficult to manage and subsequently resulted in him relocating to live with his father and wife in Townsville.”
17 From your perspective however, you were sent to Townsville by your mother to live with your father. It was put on your behalf that the move was explained to you on the basis that it was being made to allow you to have a relationship with your natural father, even though you had not seen him since your parents separated when you were about six years old.
18 You found the move to Townsville extremely disruptive in terms of your schooling and friendships. However, you recall your time in Townsville positively. The move must have been difficult for you for it is plain that you had an active life in the Atherton Tablelands, being a bright student, achieving good grades and being active in the local soccer club, competing in Tai Kwon Do, and you enjoyed riding your bicycle.
19 You completed Year 12 at the Pimlico State High School in 2011. Thereafter you obtained an apprenticeship as a fitter and turner with Quality Steel Fabrication Engineering. You instructed your counsel that you suffered a number of minor injuries during the first six months of your apprenticeship and felt unable to continue with your indenture and left your apprenticeship. You did not stop working, however, and worked making pizzas for several months after leaving working as an apprentice fitter and turner.
20 In Exhibit 3 your mother paints a different picture in that she asserts that you continued to use cannabis and this affected your ability to perform at your workplace, which led to you leaving your apprenticeship.
21 After turning 18 and obtaining your driver’s licence, your father indicated to you that it was appropriate for you to move out and you drove to Brisbane and lived with friends for several months. Thereafter you moved to Sydney and then to Melbourne. You got occasional labouring and cleaning work in Sydney and Melbourne.
22 Throughout your young life, alcohol has been the bane of your existence. By reference to your criminal record, there are a number of street offences committed by you that are indicative of offences committed whilst under the influence of alcohol. What is disturbing about your prior criminal record is that you have an appearance in Townsville in September 2013 for being in possession of a knife in a public place and later in August 2015 going armed so as to cause fear, again at the Townville Magistrates’ Court. In respect of these two appearances, summaries were provided that set out the factual circumstances surrounding them. In respect of the first appearance, you were simply found with a pocket knife in your pocket. In respect to the second appearance, you were seen by police outside the Townsville Police Station playing with a knife and when challenged by police officers, simply dealt with the challenge by saluting them and maintaining possession of your knife. Be that as it may, it appears to me that you have an unhealthy attraction to knives that has finally resulted in you using a knife as a weapon to injure an innocent cab driver who was merely going about his lawful employment.
23
Tendered as Exhibit 2 were a bundle of psychological and psychiatric reports, the first being from Warren Simmons, psychologist, dated 18 January 2017; the second being from Associate Professor Andrew Carroll, psychiatrist, dated
1 March 2017; and the third from Dr Leon Turnbull, psychiatrist, dated 25 July 2017.
24 Mr Fitzgerald of Counsel, who appeared on your behalf, did not rely on any of the principles enunciated in R v Verdins. What can be gleaned from the three reports is that you need to abstain from alcohol.
25 Whilst you are estranged from your family, your mother has provided emergency funding to you from time to time and she has placed money in your prison account. Accordingly there is an embryonic basis for a reconciliation with your family which would, if it eventuated, assist in your rehabilitation.
26 During the period that you had absconded on bail, you assaulted two women in Sydney and you await the determination of further criminal offences in the Magistrates’ Court at Melbourne later this month.
27 Armed robbery is a serious offence punishable by a period of up to 25 years’ imprisonment. Your assault on your innocent victim was unprovoked, frenetic and inherently dangerous. You are an appropriate vehicle for the application of general and specific deterrence. Having said that, you pleaded guilty to the indictment on 27 September 2017 and that plea is some evidence of your remorse and facilitates the course of justice and accordingly you are entitled to the benefits that flow to you from that plea, despite the fact that you absconded.
28 Mr Fitzgerald, on your behalf, sensibly conceded that the only appropriate sentence in the circumstances was one involving a head sentence and minimum term. Having said that, you are a young person whose prior convictions really can best be described as street offences. Your offending is linked to your alcohol abuse. Any prospect for your rehabilitation requires you to be abstinent from alcohol and to have nothing further to do with knives.
29 Doing the best I can, taking into account the objective circumstances of your offending and your subjective circumstances and applying the sentencing principles, in respect of Charge 2, causing injury recklessly, I sentence you to two years’ imprisonment. In respect of the offence of armed robbery, I sentence you to four years’ imprisonment. I order that six months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 3. This results in a total effective sentence of four and a half years’ imprisonment and I fix the period of three years’ imprisonment as the period that you must serve before you will become eligible for parole.
30 I declare that you have spent 131 days by way of pre‑sentence detention. I declare that but for your plea of guilty, I would have sentenced you to seven years’ imprisonment with a non-parole period of five years’ imprisonment.
31 I order that all licences and permits held by you under the Road Safety Act 1986 are cancelled that you are disqualified from obtaining any such licence or permit for a period of 12 months.
32 Pursuant to s.89C of the Sentencing Act 1991, I make a finding that the offences that you committed were committed by you whilst you were under the influence of alcohol and that this contributed to your offending.
33 The Crown have made application for what is known as a forensic sample. That is a buccal swab or a scraping of your mouth. I have granted that application on the basis of the seriousness of the circumstances of your offender warrant the order, your prior convictions warrant the making of the order and the granting of the order is in the public interest.
34 I must inform you that if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable the forensic procedure to be conducted. I hand down three copies of the order. Are there any further matters that arise?
35 MR BARRY: No, Your Honour.
36
HIS HONOUR: Thank you very much for your assistance in the matter,
Mr Barry.
37 MR BARRY: Thank you, Your Honour.
38 HIS HONOUR: Would you remove the prisoner please?
(Prisoner removed.)
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