Director of Public Prosecutions v Mackinnon

[2018] VCC 515

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02381

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK MACKINNON

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	18 April 2018
DATE OF SENTENCE:	20 April 2018
CASE MAY BE CITED AS:	DPP v Mackinnon
MEDIUM NEUTRAL CITATION:	[2018] VCC 515

REASONS FOR SENTENCE

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Subject:Plea - sentencing

Catchwords:             Aggravated burglary - false imprisonment – theft - assault

Legislation Cited:     Sentencing Act 1991

Cases Cited:

Sentence:8 months' imprisonment plus 2-year Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the DPP at hearing For the DPP at sentence	Ms. A. Roodenburg Ms K. Thomson	Office of Public Prosecutions
For the Offender	Mr C. McLennan	Chris McLennan Lawyers

Pages 1 - 8

 

HIS HONOUR:

1Mark Luke Mackinnon, you have pleaded guilty to one charge of aggravated burglary, one charge of false imprisonment, one charge of theft and one charge of assault. 

-    Aggravated burglary carries a maximum penalty of 25 years' imprisonment.

-    False imprisonment carries a maximum penalty of 10 years' imprisonment.

-    Theft carries a maximum penalty of 10 years' imprisonment.

-    Assault carries a maximum penalty of 5 years' imprisonment.

2By way of background, you were born on 21 September 1983 and you are now aged 34.  You were aged 29 at the time of the offending. 

3You have an extensive criminal record, about which I will go into more detail later.

4You engaged in this offending with two other co-offenders.  You referred to the first as "Coxy" and to the second as "Matthew".  The two co-offenders have not been identified by police.

5The victims in this matter are Matthew Buckler, who at the time of the offending was aged 28 years, and Kenny Nguyen, who at the time of the offending was aged 32 years.  Mr Buckler and Mr Nguyen were housemates who resided at Caxton Court, Kings Park, at the relevant time.  At the time of the offending only Mr Buckler was home. 

6The three of you knew Mr Nguyen.  Prior to this incident Matthew had been doing painting work at Mr Nguyen's home.  He believed that Mr Nguyen had at least $40,000 cash and one ounce of ice at the address, stored in a drawer in his room. 

7The three of you made arrangements to attend at the CaxtonCourt property when Mr Nguyen was not home and do a "run through" to find the drugs and the cash.

8The circumstances of the offending on 28 March 2013 are as follows. 

9The three of you - you and your two co-offenders - drove past the address and saw that Mr Nguyen's car was not in the driveway and believed he would be out.  Matthew parked the car and you and Coxy went and knocked on the door.  Mr Buckler answered the door.  This surprised the two of you, so you had a short conversation and then retreated to the car.  In the car the three of you had further discussions about what to do, and you decided to follow through with your original plan.  Parts of the discussion in the car centred on how best to manage Mr Buckler.  The three of you decided to “duct tape him” and to watch him the whole time.  The housemate, Mr Nguyen, was out at the time.

10At about 4 pm Mr Buckler was playing a computer game when he heard a knock on the door.  Upon answering the door he was confronted by two males he did not know, who barged into the house.  They were you, Mr Mackinnon, and Coxy.  Coxy was armed with a hammer, which he held towards Mr Buckler in a threatening manner.  You were smoking a tailored cigarette when you entered the house.  (I note here that the butt was ultimately left behind in the kitchen area, and some four years later this cigarette butt was subject to DNA analysis and the process identified you.)  The two of you grabbed Mr Buckler and said:  "We're going through your shit, shut the fuck up, what have you got?"  This constitutes the facts of Charge 1 of aggravated burglary.

11Coxy taped up Mr Buckler's hands around his wrists with grey duct tape and pushed him into the kitchen.  This constitutes the facts of Charge 2 of false imprisonment.

12In the kitchen you and Coxy pulled out two wireless routers from the wall.  You both then pushed Mr Buckler through the house, demanding “the money”.  You taped duct tape around his neck.  This fact constitutes Charge 4 of common law assault.      

13You then proceeded to ransack Mr Nguyen's room.  Not locating what was sought, you and Mr Buckler remained in Mr Nguyen's room while Coxy proceeded to look through the other areas of the house.  Mr Buckler says that the two of you were “getting pissed off", as you were not able to locate what you were looking for. 

14After the bedrooms were searched you both took Mr Buckler into the kitchen, where Coxy grabbed two knives, held them to Mr Buckler's face and threatened him.  You both continued to ask Mr Buckler where the money was.  Coxy hit some of the internal walls with the hammer during the incident. 

15After approximately 25 minutes you both left the property.  Coxy left on a mountain bike belonging to Mr Nguyen.  You took with you a number of items belonging to Mr Buckler and Mr Nguyen, including:

·a Toshiba computer, Armani watch and a Giant Rain mountain bike belonging to Mr Nguyen and valued at $6,000; and

·an ASUS laptop, Apple iPhone 3 (valued at $800), a gold bracelet (value unknown) and gold ring (value unknown) belonging to Mr Buckler. 

16These facts constitute Charge 3 of theft.

17When you left the property Mr Buckler was still tied up with duct tape around his wrists and neck, and he eventually contacted police by making a 000 call at 5.42 pm that day.

18You were arrested on 28 August 2017 and interviewed, and during your interview you made full admissions to the offending.  You were charged, and subsequently the matter resolved at a committal case conference on
22 November 2017.  It is conceded that this is a plea made at the earliest opportunity.

19I now turn to your personal circumstances. 

20As I noted earlier, you are now aged 34 and you were 29 at the time of this offending.  You were raised by your mother and stepfather, and have one younger brother and three younger sisters. 

21You were introduced to drugs when you were 12, and at 15 moved out of home.  You reunited with your mother when you were about 18 and lived at home until your son was born. 

22You now live with your partner and your four-year-old son. 

23You were educated to Year 11, and after school completed a pre-apprenticeship in painting and decorating and worked with your stepfather for a time as a stonemason. 

24You were introduced to heroin at age 14 and continued to use drugs up until about the time of the current offending.  Your extensive criminal history record is reflective of many years of drug use and associated offences.

25A psychological report from Dr Aaron Cunningham was tendered on your plea.  In Dr Cunningham's assessment you present with a diagnosis of
post-traumatic stress disorder with a history of childhood sexual abuse and subsequent violence.  You have distressing recollections of prior traumas and presented with depressive symptoms in the form of negative thinking and feelings of worthlessness.  Other symptoms included a marked arousal in the form of hypervigilance, difficulty concentrating, sleep disturbance, irritability and outbursts of anger and reckless and self-destructive behaviour. 

26Psychometric testing indicated clinically significant elevations on drug abuse and post-traumatic stress disorder scales. 

27You stated to Dr Cunningham that you found drug abuse a method of suppressing your feelings and trauma, and that your drug use and association with drug-abusing peers were the main contributors to your offence behaviour.  In Dr Cunningham's opinion your post-traumatic stress disorder contributed to your drug abuse.

28You have taken initiatives to work towards rehabilitation since the birth of your son.  You have employment and accommodation, you are in a stable personal relationship with your partner and you have reduced your use of heroin and continue to work towards abstinence. 

29You have been regularly attending drug health services since July 2014 for assistance with your problematic drug use and depression.  Evidence tendered from that drug health service states that you have made considerable progress since your first presentation, with drug screens showing no additional opiate use since 2017.  You continue to take appropriate medication and you have managed your depression over time with the assistance of counselling and are no longer on antidepressants.

30You have an extensive criminal record commencing in 2001 at the age of 18, being variously fined, imprisoned, and placed on community-based orders, and they have been regularly for drug and theft offences.  There are instances of breaches of suspended sentences and community-based orders.  The continued offending reflects an entrenched history of crime in the context of an enduring drug habit.  Whilst not relevant as prior offending, your record of offending continued after the date of the current matters, despite your attempts at rehabilitation, with, I note, a breach of correction order and further charges for burglary, theft, weapons, road traffic and drug offending.

31As to the present offending, this type of conduct - involving home invasion, subsequent assaults and theft - is serious offending, and is not mitigated even if it was motivated by an attempt to recover some drug debt.  Motivation for crime arising out of illicit drug activity is no comfort to the hapless, innocent victim who was entitled to feel secure in his home, and the community is entitled to feel outrage.  Principles of general deterrence, denunciation by the courts and the protection of the community are prominent sentencing considerations in this case.  In light of your history of repeated offending, despite gaol sentences and previous opportunities to reform, specific deterrence is also a relevant factor in sentencing you.

32In mitigation I accept the matters submitted by your counsel, including:

·    your plea of guilty; both for its expression of remorse and utilitarian value;

·    in particular, your assistance to the police investigation by your comprehensive co-operation in the police interview - it is conceded by the prosecution that your assistance was of high value in proof of these crimes, and also was evidence of remorse;

·    the delay of five years which has elapsed since the offending;

·    your longstanding addiction to drugs, and its context of traumatic early life experience;

·    the application you have demonstrated in an attempt to manage your addiction;

·    the stability that you have in your relationship with your partner and the motivation you have expressed in your concern to be a good father to your young son; and

·    the commitment to and compliance with your current community correction order over the past six months.

33In all the circumstances I am satisfied that the purpose or purposes for the sentence I impose cannot be achieved without a sentence of imprisonment.  I accept, however, that all of the charges are common to the same incident and significant concurrency should apply.  I also accept that your potential for rehabilitation is still open, and that process will be more effectively encouraged by a sentence of imprisonment tailored with a community correction order.

34On Charge 1 of aggravated burglary you are convicted and sentenced to six months' imprisonment. 

35On Charge 2 of false imprisonment you are convicted and sentenced to three months' imprisonment.

36On Charge 3 of theft you are convicted and sentenced to four months' imprisonment.

37On Charge 4 of assault you are convicted and sentenced to two months' imprisonment.

38Charge 1 is the base sentence. 

39I direct that two months of the sentence imposed on Charge 3 be served cumulatively on the sentence imposed on Charge 1.  The sentences are otherwise concurrent.

40The total effective sentence is eight months' imprisonment.

41On Charge 1 of aggravated burglary, Charge 2 of false imprisonment,
Charge 3 of theft and Charge 4 of assault you are also ordered, with conviction, to serve a community correction order for a period of two years.

42The community correction order commences immediately upon your release from prison and ends two years from that date.  The Corrections Centre you will attend is the Sunshine Community Corrections service at
10 Foundry Road, Sunshine, and you must attend there within two clear working days after the completion of your imprisonment term.

43All the mandatory terms of the community correction order apply, and the additional conditions I impose are that:

·    you be under the supervision of a community corrections officer;

·    you perform 200 hours of unpaid community work as directed by the regional manager - and that will be cumulative on the hours you are already directed to serve on your existing community correction order;

·    you undergo assessment and treatment, including testing, for drug abuse or dependency as directed by the regional manager;

·    you undergo mental health assessment and treatment including, but not limited to, mental health, psychological, neuropsychological and psychiatric, if necessary, in a hospital or residential facility, as directed by the regional manager; and

·    you undergo programs or courses aimed at addressing factors relating to your offending as directed by the regional manager.

44Now, I realise that you have already had the mandatory terms of the community correction order explained to you, but I will just go over them again now so that all is perfectly clear.  The mandatory terms are that:

·    you must not commit another offence for which you could be imprisoned during the time that the order is in force;

· you must comply with the requirements of regulation 17 of the Sentencing Regulations 2011, which essentially set out your obligations as to your attendance at the Community Correctional Centre, such things as not attending drug or alcohol-affected;

·    you must report to and receive visits from a Community Corrections officer;

·    you must report to the Community Corrections Centre - that is, the Sunshine centre - within two clear working days of the order starting, and as I have already indicated, that means within two clear working days after the completion of your imprisonment term;

·    you must notify a Community Corrections officer of any change of address or employment within two clear working days after the change;

·    you must not leave Victoria without first getting permission to do so from a Community Corrections officer; and

·    you must obey all lawful instructions from, and directions of, Community Corrections officers - such directions may be given either orally, or in writing. 

45So do you understand and agree to those conditions, Mr Mackinnon?

46OFFENDER:  Yes, Your Honour.

47HIS HONOUR:  Now, if you get sick or if exceptional circumstances arise, the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order.  In either case you must notify the Sunshine Community Corrections Centre, and I recommend that you obtain legal advice if any of these things happen.

48However, I must warn you that if you breach any condition of this order you will be brought back to court, and that will be back before me.  One of the options open to me is to cancel the community correction order and
re-sentence you on the original charges, and I may also deal with you for the breach by sending you to prison for up to three months. 

49So, Mr Mackinnon, do you understand the consequences of breaching your community correction order?

50OFFENDER:  I do, Your Honour.

51HIS HONOUR:  All right.  Well, you may be seated.  I'll ask you to sign the community correction order shortly.

52For the purposes of s.6AAA of the Sentencing Act, but for your plea of guilty the total effective sentence that would have been imposed is 24 months' imprisonment with a non-parole period of 18 months. 

53The CCO can now be passed to your counsel for your signature please.

54MR McLENNAN:  If I could have leave to approach, Your Honour?

55HIS HONOUR:  Yes, of course.  Anything else from either counsel?

56COUNSEL:  No, Your Honour.

57HIS HONOUR:  Okay.  Ten-thirty Monday.

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