Director of Public Prosecutions v McCarthy

[2018] VCC 157

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

AT GEELONG
CRIMINAL DIVISION

CR-17-01167

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZACHARY GAVIN MCCARTHY

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Geelong
DATE OF HEARING:	6 February 2018
DATE OF SENTENCE:	22 February 2018
CASE MAY BE CITED AS:	DPP v McCarthy
MEDIUM NEUTRAL CITATION:	[2018] VCC 157

REASONS FOR SENTENCE
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Subject:Criminal law – Sentencing

Catchwords:    Aggravated burglary and causing serious injury recklessly – immediate term of imprisonment imposed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Maguire	John Cain, Solicitor for Public Prosecutions
For the Accused	Mr M. Vines	Vines Lawyers

198712  Pages 1 - 11

 

 

HER HONOUR: 

1Zachary McCarthy, you have pleaded guilty before me on indictment, to one charge of aggravated burglary and one charge of causing serious injury recklessly.

2The offending is serious and that is reflected in the maximum penalty prescribed by law and that is 25 years' imprisonment in respect of the aggravated burglary charge and 15 years' imprisonment in respect to the recklessly causing serious injury charge. I will now proceed to sentence you on the basis of the Crown opening that was read at the plea hearing and has been exhibited. 

3You were 25 years at the time of the offending and you are relatively youthful. 

4I will briefly refer to the circumstances of the charge.  The incident occurred on Tuesday 31 January 2017.  Both you and a co‑accused, James Twentyman, are friends.  You had been drinking together that day into the evening.  You were drinking alcohol mixed with Serepax.  You were both intoxicated at the time of the offending.  You had been drinking in the company with your respective girlfriends, namely Taylor Blacker and Ebony Graham.

5Apparently you had sold a vehicle to Robert Harrison, the complainant in Charge 2.  He is aged 19.  You were in a dispute with him about the agreement and during the course of the evening, you and Twentyman discussed going together to see Harrison to retrieve the car keys from him. 

6At the time Twentyman was in possession of a small folding Gerber knife and during the course of the day, you had been playing with the knife and you told Twentyman that you would hold on to it. 

7Later in the evening the two of you began to walk towards the unit where Robert Harrison was staying.  He was living there with his sister Lauren.  You walked towards the unit in company with your respective girlfriends.  Unbeknown to you, Robert Harrison and another friend Nathan Voyce, who had been staying at the unit, were out at a nearby supermarket. When you first arrived and tried to enter the unit, Robert's older sister Lauren Harrison was asleep in an upstairs bedroom of that unit.  It was about midnight and you and Twentyman approached the front door and banged on the door.  Lauren Harrison heard the noise but ignored it.  You then both forcibly gained entry by breaking the doorframe on the rear back door.  When you entered the premises you were in possession of the Gerber knife.  I noted that you were known to all of the people involved in this incident. 

8Charge 1 aggravated burglary is put on the basis that you were armed with the knife and entered the unit with the intention to assault a person. 

9On entry you both went upstairs to the bedroom area and as you were climbing the stairs, your friend Twentyman called out, "Is anyone home?" Ms Harrison recognised his voice.  You then both entered Ms Harrison's bedroom and turned on the light.  Lauren Harrison saw Twentyman and then heard him say, "Where's the money?" Lauren got out of bed and pushed past the two of you into the hallway.

10As she neared the staircase you swore at her and kicked her in the back, causing her to fall part way down the stairs before she caught herself.  She then ran down the stairs followed by both you and McCarthy.  She reached the front door and opened it and as she exited, she saw one of you two grab her television and throw it to the floor.  Those facts constitute Charge 1 aggravated burglary. 

11As she exited the unit, Robert Harrison and Nathan Voyce were nearly home, having returned from the supermarket.  She yelled out to them as you two ran from her unit into the driveway.  McCarthy, you started fighting with Robert Harrison and Nathan Voyce in the driveway.  During that fight you stabbed Robert Harrison once to the lower back region causing his spleen to rupture.  He suffered serious injury and was in a coma for several days, and that constitutes Charge 2 recklessly cause serious injury.

12After Robert Harrison had been stabbed and was lying on the ground, McCarthy, you were heard to say these words:  "I want my keys back".  Ms Harrison saw you holding the knife that had blood on it.  At this point you turned and started to assault Mr Voyce.  You pushed him up against the wall and held the knife to his throat.  All the while Mr Harrison was yelling, "I've been stabbed". 

13Mr Twentyman then placed himself between you and Mr Voyce and attempted to disarm you.  A fight then ensued between you and Twentyman and Voyce.  Twentyman managed to punch you and disarm you.  In the course of the scuffle when he sought to intervene and disarm you, he suffered a defensive wound, namely a laceration to one of his hands caused by the blade of the knife.  You then punched Mr Twentyman before walking away. 

14Police eventually attended the scene and arrested you.  You were a short distance away from the driveway.  Police located the small black folding knife nearby.  It was exposed, the blade, and it appeared to have blood upon it. 

15The impact of your offending, Mr McCarthy, has been very serious.  Mr Harrison suffered a stab wound to the left interior lateral aspect of his chest and back at the superior aspect of his flank.  He underwent an emergency laparotomy for splenic injury.  The stab wound caused potentially life‑threatening injuries and without swift surgical intervention, it could have led to his death through catastrophic bleeding.

16When interviewed you admitted attending the premises with Twentyman in order to retrieve the set of keys relating to the vehicle.  You also admitted possessing the knife and entering the unit and confronting Ms Harrison.  You admitted to being in possession of the knife at the time Mr Harrison was stabbed and you told police that you must have stabbed him. 

17It is accepted by prosecution that Twentyman is in no way responsible for the injuries to Mr Harrison.  This offending, particularly the stabbing, is a serious example of this offence.  The aggravated burglary is also a serious example of that offence.  Two men forcibly entering a unit in the early hours of the morning, in company, and confronting a lone person while she was asleep in bed would have been terrifying for her, and thereafter you stabbed Mr Harrison causing serious injury.

18In sentencing you, there is a need for the court to emphasise denunciation and on behalf of the community, I condemn your behaviour.  There is also a need to emphasise both general and specific deterrence and to provide for the protection of the community in the future. 

19Victim impact statements were declared by Lauren Harrison and by Rachel Kirby, the mother of Robert Harrison.

20Lauren Harrison described her feelings of violation and ongoing problems with anxiety, depression and fear.  She was upset about so‑called friends behaving in this manner.  She experiences problems with feeling insecure in her own home and lives in constant fear.  She has ongoing symptoms of post‑traumatic stress disorder, including sleeping problems, rumination and nightmares, depression and anxiety.  She is hyper vigilant and reacts in an aroused way whenever anyone knocks at her door.  She feels guilty that she was unable to protect her little brother from injury.  She stated that the incident has affected her dramatically in all areas and she hates how her life has become and how her trust of other people has been broken. 

21Ms Rachel Kirby, Robert Harrison's mother, set out the impact that the offending has had upon her upon immediately being notified that her son had been stabbed.  She described her anguish and her fear that she would lose her son.  Fortunately, he has survived and made a good recovery with counselling.  She states that he is now working.  She says however he has dropped all his friends, except for Nathan Voyce and he that has now become very withdrawn and insular.  He suffers severe anxiety and has trouble sleeping and he too has issues with trust.

22Given the circumstances, all of those impacts are very understandable.

23Rachel Kirby also described her depression and the toll that the incident has taken upon all of her family. Her life changed forever through your one senseless act of violence. 

24I shall now turn to matters personal to you. You are 25 years of age and you are a roof tiler by occupation.  You admitted your prior criminal history.  Of particular relevance, you were convicted at Geelong Magistrates' Court on 13 April 2012, when you were aged 19, for a charge of recklessly cause serious injury, unlawful assault and possess and use drug of dependence for which offences you received a sentence of six months detention in a Youth Training Centre. 

25The circumstances of the recklessly cause serious injury charge echo the circumstances of this case and are very concerning.  You were involved in an argument involving your girlfriend and your girlfriend's brother. Whilst fighting with the girlfriend's brother, you removed a knife from your pocket and stabbed him twice in the back.  He suffered puncture wounds to the lower right side of his back and upper right side of his back. In the circumstances of that case, when you were interviewed by police you said that offending occurred in the context of you having taken two or three Xanax tablets and that your recall of the incident was limited due to your intoxicated state and unfortunately, that reflects again the circumstances of this current offending. 

26I have taken into account the context of the offending and accept that you were heavily under the influence of both alcohol and Serepax at the time this offending occurred.  Whilst explaining why it is that you engaged in this sort of behaviour on this occasion, it in no way excuses your behaviour. 

27You had already been previously dealt with by the courts for offending that occurred in not dissimilar circumstances, that is resorting to using a knife, stabbing a person whilst intoxicated and under the influence of drugs.  You ought to have known the link between your propensity for violence when you have abused drugs and in an intoxicated state.  I consider your moral culpability to be high and there is a real need to emphasise both general and specific deterrence and the protection of the community from you in the sentencing.

28I note that you have also had appearances in the Children's Court for burglary and other dishonesty type offences in 2008 and 2009. 

29You have been on remand since the offending and you are currently held at the Albion mainstream unit at Port Phillip Prison where you work as the unit billet. 

30You are the eldest of three children.  You grew up amongst an extended family that included your grandmother and yours was a difficult background.

31Your mother, Ms Gabrielle McCarthy gave evidence at the plea hearing.  She described the difficulties she's had in her relationship with your father, her former husband.  Your parents separated when you were eight, due to your father's violence and following separation, all three children of the marriage remained with him whilst your mother went to live in Castlemaine.  She did however continue to have regular contact with all of her children and saw you all once a week.

32She described your father's relationship with you as being one characterised as being very violent and a controlling one.  He died recently following a heart attack about five months ago whilst travelling in Cambodia.  As you grew older the physical abuse continued and you would both physically fight each other. 

33I have also had regard to a recent disclosure from you that you were sexually abused as a young child by an older cousin and you were touched inappropriately over five years between the ages of six and eleven and you have never, ever sought any treatment or counselling in respect to that. 

34Because of the difficulties that you experienced in the home setting, you left the family home when you were aged only 15 and went and lived with your grandmother.

35You completed Year 10 at Oberon high school and then went on to commence but did not complete a bricklaying apprenticeship, a butchery apprenticeship and a baker's apprenticeship.  Your last employment was as a roof tiler and you have a Certificate III in roof tiling.

36Unfortunately your work ceased in March 2016 following a workplace injury.  You suffered a hearing loss when you were exposed to an explosive device that caused you to suffer a 50 per cent bilateral hearing loss which rendered you unfit for work as a roof tiler. 

37You are currently in a relationship with Ms Blake with whom you have a 2 year old son.  She also has a 4 year old son whom you treat as if he were your child.  She was present at the plea hearing and remains supportive of you.  She is regularly visiting you whilst you are in prison.  The relationship is described as being a stable one and ongoing.

38You have had a lengthy history of polysubstance abuse.  You started drinking alcohol when you were only 14, drinking to dangerous levels, several days a week.  Around 15 you started using cannabis, amphetamines, methylamphetamines and Xanax and you used drugs and alcohol to forget your problems and make you feel happy. 

39You were interviewed by David Ball, a psychologist, whose report of 28 September 2017 was provided at the plea hearing.  He found no evidence of frank mental illness.  He considered that you reported symptoms consistent with post‑traumatic stress disorder, including nightmares, hypervigilance, exaggerated startled response which was linked to abuse, including sexual abuse that you were subjected to during your childhood.

40He could find no evidence of cognitive impairment and estimated your IQ to fall within the normal range.

41He diagnosed post‑traumatic stress disorder and severe benzodiazepine cannabis stimulant and alcohol use disorder in remission in a controlled environment. 

42When interviewed by Mr Ball, you acknowledged the negative impacts of your substance abuse on your life, including your physical and mental health.  In the past you have had some community based counselling and found it to be of assistance but you stated to Mr Ball that it was not frequent enough. You indicated to him your willingness to participate in further drug and alcohol counselling.  You told Mr Ball that you had no recollection of the events, the subject of these charges and you had been affected by abusing Serepax and alcohol that night.  You expressed regret and remorse to him concerning the offending.  You said and I quote, "I'm sorry and I hope one day that they (the victims) can forgive me, that's not me or who I am."

43Mr Ball recommends that you would benefit from treatment aimed at addressing your conditions and also treatment, including supervision and support in the community.  I urge the correctional authorities to have regard to the contents of his report which will be provided.

44Recently you have been provided medications for depression.

45Mr Vines on your behalf highlighted factors in mitigation, which I accept.  You are still relatively youthful being 25 years of age and your rehabilitation therefore is an important sentencing consideration and having regard to the seriousness of the particular offending for which you are to receive a sentence, general and specific deterrence and protection of the community loom large in this exercise. 

46He emphasised your early plea of guilty entered at committal mention.  I accept that the plea was at the earliest opportunity and has real utility.  You spared the State the expense and necessity of both committal hearing and a trial and importantly there was no cross‑examination of any of the witnesses.  In the particular circumstances of this case, that is important, given it would have been very traumatic for either the complainant, Robert Harrison or his sister Lauren to give evidence in this trial. 

47You have facilitated justice and your sentence will be discounted accordingly. 

48I do accept the plea is indicative of some remorse on your behalf.  I have also had regard to the written apology that you have provided to me and all the victims.  I note that you make no excuses for your actions and you are deeply sorry to your victims and the families and you acknowledge that you deserve to be punished in respect to the hurt that you have occasioned to the victims and their families.  You say that there is not a day that goes by where you do not feel regret for what you have done. Because of a stupid decision you are missing out on seeing your children grow up and you do not blame anyone but yourself for that.  You say that on remand you have done a range of courses, one of them being one‑on‑one therapy which has helped you in so many ways, one of which is dealing with some of the traumatic things that have happened to you as a child and the anger that you have as a consequence.  You state that you consider that you have made real progress towards your rehabilitation. 

49You hope one day that Robert, Lauren and Nathan can forgive you for your actions.  You know that that is asking a lot of them, but you have come to learn that forgiveness is very important and that also means forgiving yourself which you are in the process of experiencing.

50You describe being in a good place physically and emotionally and you state that the sentence to be handed down will be one of the last hurdles on the road to rebuilding your life and you express again your true sorrow for what you have done and the hurt that you have occasioned to all of the victims.

51I have had regard to that apology and I do consider that you are genuinely remorseful and you have had a real opportunity now to reflect on your behaviour.

52I have had regard to your childhood history of abuse and deprivation which has had an ongoing negative impact upon you and that has continued, despite further serious offending.[1]

[1]Bugmy v The Queen [2013] HCA 37.

53Your post‑offence conduct does reflect well upon you.  You are working productively as a billet.  There was evidence of negative drug screens and you are now drug free, but that is in the context of a controlled environment in the prison.  Of significance, you have already undergone some counselling and treatment in order to help you identify the reasons for your underlying offending behaviour and you are committed to further treatment in the future.

54Overall, I do consider that you have good prospects for rehabilitation, provided that you can maintain your abstinence and be supported in the community with treatment aimed at your post‑traumatic stress disorder, drug and alcohol problems and other offending behaviour, including anger management.  You require supports in the future to direct you to appropriate employment options, having regard to your hearing disability. 

55I have had regard to the principles of totality and also the need to avoid a crushing sentence.

56Mr Vines on your behalf properly conceded that the only disposition available to the court was an immediate term of imprisonment to be imposed. 

57Mr Maguire, on behalf of the Crown, highlighted the serious nature of your offending and submitted that both the aggravated burglary charge and recklessly cause serious injury charge are serious examples of these serious offences.  He highlighted the violence and confrontation that occurred in the context of the aggravated burglary and that the fact that you were in company and that you entered the unit when it was believed there was a person present.  The mode of entry was forced and there was a real confrontation with Ms Harrison in her bedroom and thereafter you were violent towards her in the manner that was described in the opening.  All of those factors combined, it would have been a terrifying experience for her.

58He emphasised just punishment, general and specific deterrence, denunciation and protection of the community were primary sentencing considerations.

59He submitted the recklessly causing serious injury charge was a serious example of this offence and that the aggravated burglary charge was in the mid‑range of offending.  I agree with all of that but I consider the aggravated burglary charge to be in the upper range of mid-level offending. 

60I will now proceed to sentence you.  I omitted to say that I have had regard to the letter written on your behalf by Dr Chris Bradshaw and that is another factor that I took into account in terms of your rehabilitation. 

61Could you please stand now Mr McCarthy.  In respect to Charge 1 the aggravated burglary, you will be convicted and sentenced to 4 years' imprisonment, and Charge 2, the recklessly cause serious injury, you will be convicted and sentenced to 5 years' imprisonment.  I make an order for cumulation.  I order that one year of the sentence imposed on Charge 1 be cumulative upon the sentence imposed on Charge 2, making a total effective sentence of 6 years' imprisonment. 

62I fix a non‑parole period of 4 years.  I make a declaration pursuant to s.6AAA but for your pleas of guilty I would have imposed a sentence of eight years to serve six years.  Pre‑sentence detention I have got 385 days.

63MR MAGUIRE:  Correct.

64MR VINES:  Yes, Your Honour.

65HER HONOUR:  I make a declaration of pre‑sentence detention.  I declare that you have served 385 days of the sentence imposed and direct that that be entered into the records of the court. 

66Finally I make the disposal orders sought.  Have those disposal orders been provided? 

67MR MAGUIRE:  Yes, Your Honour.

68HER HONOUR:  Have we got them?  Okay, they will be printed out and I will sign them and my associate will provide them to your instructor.

69COUNSEL:  If Your Honour pleases.

70HER HONOUR:  Yes, thank you.

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