Director of Public Prosecutions v McGinnes
[2022] VCC 1944
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00772
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYRON McGINNES |
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JUDGE: | HER HONOUR JUDGE HAWKINS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 October 2022 | |
DATE OF SENTENCE: | 9 November 2022 | |
CASE MAY BE CITED AS: | DPP v McGINNES | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1944 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – SENTENCING.
Catchwords: Armed robbery – prohibited person possess, carry or use a firearm – theft – make threat to destroy or damage property – possession of a drug of dependence – unlawful assault with a weapon – young offender – criminal history – plea of guilt – totality and proportionality
Legislation Cited: Crimes Act 1958 (Vic), s75A; s74(1); Firearms Act 1996 (Vic), s5(1); Drugs, Poisons and Controlled Substances Act 1981 (Vic), s73(1); Summary Offences Act 1966 (Vic), s23; Sentencing Act 1991 (Vic), s5, s5(2H), s6AAA, s89(4)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Verdins & Ors [2007] VSCA 102; Bugmy v The Queen (2013) 249 CLR 571
Sentence: Total effective sentence of four years’ and 11 months’ imprisonment and $1000 fine with a non-parole period of three years’ and one month – disposal and forfeiture order – licence disqualification order – s 6AAA declaration of eight years’ imprisonment with a non-parole period of five years’ and six months’
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Pathmaraj | Office of Public Prosecutions |
| For the Accused | Mr L. McPhie | Ann Valos Criminal Law |
HER HONOUR:
1Tyron McGinnes, you have pleaded guilty to:
· One charge of armed robbery, which carries a maximum penalty of 25 years' imprisonment;[1]
[1]Crimes Act 1958 (Vic), s75A
· Two charges of prohibited person possess, carry or use a firearm, each carrying a maximum penalty of 10 years' imprisonment;[2]
[2]Firearms Act 1996 (Vic), s5(1)
· Four charges of theft, each carrying a maximum penalty of 10 years' imprisonment;[3]
[3]Crimes Act 1958 (Vic), s74(1)
· One charge of make threat to destroy or damage property, which carries a maximum penalty of five years' imprisonment;[4]
[4]Ibid, s198
· One charge of possession of a drug of dependence, which carries a maximum penalty of one year imprisonment;[5] and
[5]Drugs, Poisons and Controlled Substances Act 1981 (Vic), s73(1)
· Two charges of unlawful assault with a weapon, each carrying a maximum penalty of two years' imprisonment.[6]
[6]Summary Offences Act 1966 (Vic), s23
2You have also admitted your prior criminal history.[7]
[7]Exhibit B
Circumstances of Offending
3The circumstances of all you offending are set out in the Amended Summary of Prosecution Opening for Plea dated 16 September 2022,[8] the accuracy of which you accepted through Mr McPhie, your counsel.
[8]Exhibit A
The Caravan
4Mr McGinnes, you embarked on a five day crime spree commencing on
1 August 2021. You began by attending your cousins’ caravan while she (‘EC’), her then partner (‘PE’) and his brother (‘JE’) were present. You went with two unknown male accomplices, each of you in possession of a firearm.5When you got there, you knocked on the front door stating your name.
JE opened the door to you, you then entered the caravan and sat down while holding a double barrel shotgun on your lap. One of your accomplices, who I will call ‘Unknown Male 1’, then entered the caravan also holding a black handgun. You said to PE and EC, 'Oi, come out the front my mates in a hottie'. They both declined and, as a result, your other accomplice, who I will call ‘Unknown Male 2’, entered the caravan holding a black handgun. Unknown Male 2 declared that the motorbike you were looking for was not in the backyard.6
At this point in time, all three of you pointed your firearms at PE and
EC who were sitting on the bed, while JE was sitting at the opposite end of the caravan. With your firearm pointed at EC’s head, you stated 'don’t think I won't shoot you'. Unknown Male 1 began grabbing items belonging to EC, including prescription epilepsy medication, cigarettes, a pair of Nike Air sneakers and keys to PE’s car.
7EC began having a seizure and you are your accomplices began screaming at PE that you were going to go to his mother's house and take his motorbike.
8Unknown Male 2 struck PE to the knee with his firearm before you struck both PE and EC in the head, causing EC to have a second seizure.
9JE began calling Triple 0 for an ambulance, but you pointed your firearm at him and he handed the phone to you. You told him not to call the police, but permitted him to call an ambulance. Shortly after, you and your accomplices left the caravan and EC was taken to hospital.
10The offending at the caravan is the subject of Charges 1 of armed robbery, Charge 2, prohibited person possessing a firearm and Summary Charge 5, that of unlawful assault of EC with a weapon.
11The remaining incidents I have described are not specifically charged, but I note them for context.
Threat
12The following day, you called ‘KC’, who's EC's sister and threatened that you were going to pour petrol over her car and set it on fire. KC recorded this conversation and gave it to police. The offending in this incident is the subject of Charge 4, make threat to damage or destroy property.
Theft of Motor Vehicles
13During this five day spree, you stole three motor vehicles from the driveways of ‘BC’, ‘AC’ and ‘TF’. These thefts relate to Charges 3, 5 and 6.
Petrol Theft
14On 6 August, you attended a BP service station in TF’s stolen car. You were driving and two unknown men were with you. The car was filled with $107 worth of petrol and you drove off without paying for it. This was captured on the CCTV footage which identified you, and is the subject of Charge 7 of theft.
Unlawful Assault with a Weapon
15
After driving off from the petrol station, you were seen by TF and her
15 year old daughter, ‘TW’, driving the stolen car belonging to TF. They began following you and you pulled over to the side of the road to allow them to pass. Instead of letting them go, you then proceeded to follow and overtake. While you were overtaking them, TW and TF saw the barrel of a gun pointing in their direction out of the front passenger side window, resting on the door of the car with the window down. This conduct is the subject of Summary Charge 23, unlawful assault with a weapon. TW was understandably terrified and called Triple 0.
Investigation
16You were located and arrested that day at the address of one of your known associates after you attempted to flee the rear of the premises.
17Search warrants were executed and the police located a bag belonging to you that contained a stolen loaded sawn-off Beretta shot gun, several shot gun cartridges, .22 ammunition and a stolen damaged gun safe. This is the subject of Charge 8, prohibited person possessing firearms.
18
The police also located a small bag of methylamphetamine on you, forming
Charge 9, possession of a drug of dependence.
19Upon your arrest, you provided a 'no comment' interview.
Nature & Gravity of Offending
20Mr McGinnes, the gravity of your offending in the caravan is a serious example of each of the charges laid against you in respect of this incident. I am mindful of the commonality of the circumstances of this offending as it relates to each charge.
21You entered the private residence of someone you had known your whole life, backed up with accomplices and firearms designed to incite fear in your victims so that you could fund your addictions. You and your two accomplices would have been a terrifying presence in a small caravan. The three of you held EC and PE at gunpoint, no doubt causing them to fear for their lives. You also struck the head of the person you call a 'cousin' with your gun while she was seizing due to the stress of the circumstances. When JE attempted to call Triple 0 after you assaulted EC, you pointed the gun at him so that he would have to hand the phone to you. Although there is no evidence that the firearms you used were loaded or fired, the manner in which you used them was very serious.
22I accept that your moral culpability is somewhat reduced given that you handed the phone back to JE so that he could call an ambulance for your cousin. However, knowing the victim in the armed robbery and the assault charges heightens your moral culpability in that regard.
23Your offending against TF and TW is also serious. Not only did you steal TF's car and use it in a petrol theft, you also made the conscious choice to follow two strangers in their stolen vehicle and point a gun at them. You had the opportunity to avoid confrontation and let them pass you once they pulled over. You instead chose violence. I acknowledge that the prosecution do not suggest that it was you who actually pointed the gun at TF and TW and that this offending is put on the basis of complicity. I also take into account that you did not confront the other victims of your motor vehicle thefts.
24Your offending occurred in the context of drug addiction, problematic gambling and homelessness. Prior to your offending you were living with your partner, however when your relationship ended you returned to a transient lifestyle. Unsurprisingly you soon fell back into the vicious cycle of drug use and criminal offending.
25These offences occurred over a relatively short five day period. Your spree did involve some degree of premeditation and planning but it was clumsy and unsophisticated. You did not conceal your identity and you announced yourself on entry into the caravan, and offended in the presence of witnesses.
26You were also subject to a Community Corrections Order (‘CCO’) at the time of the offending. Your counsel argued that less weight should be given to the fact that you were on a CCO because you have already been sentenced for that breach. You will not be sentenced a second time for your actual breach but this is a relevant aggravating feature in your offending.
27After taking into account all the relevant considerations, I conclude that you have high moral culpability and that the seriousness of your offending, particularly in relation to the caravan and the other firearms offending, is moderate to high.
Victim Impact Statements
28EC and TF made victim impact statements.
29
EC has a pre-existing condition causing seizures which was under control until you struck her on the head with a gun. EC now suffers vision loss and is medically unfit to drive. Having to forfeit her licence, attend medical appointments, and the associated costs has been a big impact on her life.
EC has also been subsequently diagnosed with depression, anxiety and Post-Traumatic Stress Disorder. She now experiences social isolation and trouble trusting others. She has moved to another town in an effort to feel safer. EC says what she finds the hardest is that the person who did this to her and causes her to live in fear each and every day, was a person she grew up with from the day you were born.
30TF can no longer drive down the street where you assaulted her without feeling tightness in her chest and general anxiousness. She struggles to use her car and feels a great sense of loss. She speaks of the anger, hurt, fear and frustration of seeing her 15 year old daughter being 'lined up with a gun'. Since your offending, TW has developed depression, anxiety and stress which requires professional help.
Personal Circumstances
31Mr McGinnes you were born in November 2000 and were 20 years old at the time of your offending. You are now 21, still a young man.
32I note that you are a young Aboriginal man from your mother's side. However, you know little of your cultural heritage and lack genuine connection to community. You have an older sister who is 23 years old, and a 14 year old younger brother.
33You had a difficult upbringing, marred with family violence, drug abuse and mental health problems. Your biological parents separated following your birth and your mother was diagnosed with post-natal depression. Sadly, she did not form a bond with you as an infant and you were removed from her care at a young age.
34At the age of one, your older sister and you went to live with your father and his partner, who you refer to as your 'foster mother'. Court orders were in place for you and your sister to have fortnightly access visits with your biological mother. She spent time with your sister but largely rejected you through no fault of your own.
35You lived with your father and his partner until the age of 12 when they separated. While living with them, you witnessed regular family violence perpetrated by your father towards your stepmother. Your father was a heroin addict and abused alcohol in your presence.
36After their separation, you lived with your father at the start of your early teens. You then lived with your stepmother in Queensland until you were 17 years of age, at which time you returned to Victoria to reconnect with your biological mother. Whilst you were in Queensland, you had no contact with your father, later discovering that he was in prison. You were ashamed of your father's actions, particularly his violence towards women.
37Whilst living with your mother you were exposed to further family violence perpetrated by your mother's partner. He was abusive towards your mother and subjected you to emotional and psychological abuse to effectively drive you out of the house.
38You left school at the age of 16, after successfully completing Year 10 while living with your stepmother in Queensland. You instructed that you were diagnosed with Attention Deficit Hyperactivity Disorder (‘ADHD’) at a young age, making school difficult for you.
39In Victoria, you worked at a pizza shop for six months but resigned due to pay disputes and a poor relationship with your boss.
40You also report being diagnosed with obsessive compulsive disorder, pathological gambling disorder and stimulant use disorder. You experienced delay in language development from the age of one and instruct that you were diagnosed with an intellectual disability in primary school.
41Your exposure to drug and alcohol use from a young age through your father's addictions normalised substance abuse for you. Your counsel told the court that your primary treatment need is for drug abuse, predominantly ice. You recall using ice from 13 years of age. You have also previously used marijuana, heroin and GHB. Shortly after you were last released from custody, you found yourself using ice again and playing the pokies. You instruct the lights and sounds of the pokies, coupled with the effects of using ice are a way for you to calm down when you feel restless and irritable.
42You have told your counsel that you have not consumed drugs since entering custody on 6 August 2021. This has been your longest abstinence. I note however, that I have no negative drug screens to support this assertion.
Sentencing Considerations
Guilty Plea
43You have pleaded guilty at the earliest possible opportunity in this case, on the second day of the committal once the charges laid against you were properly resolved. Your plea of guilty has a utilitarian benefit in that it spares the court and the community the time and cost of a trial, as well as the need for witnesses to undergo the stress of giving evidence in court. This benefit is rendered more significant given the effects of the COVID-19 pandemic. Consistent with the principles set out in Worboyes’ case, you are entitled to an actual and palpable amelioration of your sentence.[9]
Remorse
[9]Worboyes v The Queen [2021] VSCA 169
44Mr McPhie informed the court that you are particularly ashamed of your current offending that involved violence against women. This is because of your determination not to follow in your father's footsteps. I take this insight as showing some level of remorse.
Mental Health & Childhood Disadvantage
45Despite your history of mental health challenges, you instructed your counsel not to tender any materials supporting the impact your diagnoses have had upon your behaviour and offending. As such, no Verdins'[10] submissions were made and little mitigatory weight can be placed on the role your mental health had to play in your offending.
[10] R v Verdins & Ors [2007] VSCA 102
46Your counsel submits, and I accept, that the significant social disadvantage that you suffered throughout your childhood is relevant, albeit it does not bear the full weight of Bugmy[11] given the lack of supporting materials before the court.
[11] Bugmy v The Queen (2013) 249 CLR 571
Rehabilitation
47Mr McGinnes, you have had a difficult start to life. You have struggled with substance abuse, predominantly ice, since you were 13. Your counsel informs the court that your offending is fuelled by your addictions, and exacerbated by the homelessness you were experiencing at the time.
48You appreciate that you are stuck in a cycle of substance abuse and offending in the Ballarat region, and have goals upon your release from custody to try and break that cycle. These include moving to Geelong to get away from negative associations, obtaining employment through a friend, remaining drug free, avoiding gambling and not committing anymore offences. I am told that you have engaged in services in custody that will assist you with finding alternative accommodation in another regional city.
49At your young age, these goals demonstrate a level of maturity and insight that increases your prospects of rehabilitation.
Criminal History
50You have an unfortunate criminal history for a man of your age, with prior convictions for serious driving offences, drug and dishonesty offences, threats of violence and unlawful assault. Mr McPhie conceded that your criminal history is poor for a 21 year old, however drew the court's attention to the fact that your priors consist of two unlawful assault convictions, with the remainder being primarily dishonesty offences. I note that your criminal history is consistent with significant drug abuse and there is an absence of any previous firearm or causing injury offences.
51I acknowledge that this is your first time before the County Court of Victoria.
Young Offender
52Mr McGinnes, you were 20 years old at the time of your offending and as such, fall to be sentenced as a young offender.
Burden of Imprisonment
53You have been in custody on these charges for 429 days. This has been during the height of the COVID-19 pandemic and I accept that the stringent conditions placed on you in custody would have made custody more burdensome than it might otherwise would have been.
54You were also the victim of a shiv knife attack while in custody that required hospitalisation and treatment. Despite this, you have instructed that other than the normal difficulties and feelings associated with being in custody, your mental health is good. You have not seen any professionals whilst in custody.
Sentencing Principles
55In sentencing you I must have regard to a range of matters such as the seriousness of your offending, your culpability for it and your personal circumstances. I must balance the interests of the community in denouncing criminal conduct with the interests the community clearly has in seeking to ensure as far as possible, that offenders are rehabilitated and are reintegrated into society. I must impose a sentence which is proportionate to the gravity of the offence, considering the circumstances. The sentence must be no more than is necessary to satisfy those various objectives.
56I have taken into account the relevant sentencing principles referred to in section 5 of the Sentencing Act 1991 (Vic) (‘the Sentencing Act’). Given the nature and gravity of your offending, specific deterrence, general deterrence and community protection all have a role to play in your sentence. Your young age also gives rehabilitation significant weight in moderating your sentence.
Current Sentencing Practices
57I have also taken into account current sentencing practices for the offences to which you have pleaded guilty as well as the important principles of totality and proportionality. I note that both counsel had difficulty in providing adequately comparable cases that reflect the unique circumstances of your offending but I have had regard to specific cases about each type of offence more generally.
58I note that Charge 1 of armed robbery is a category 2 offence and pursuant to section 5(2H) of the Sentencing Act, the court is required to sentence you to a custodial sentence unless a special reason exists. It is conceded by your counsel that a term of imprisonment with a non-parole period is warranted in these circumstances.
59I accept that were a crushing sentence imposed on you at your age that you would risk institutionalisation, and given your age and life challenges, I consider that an extended period of supported transition into the community will serve to best support your rehabilitation and protect the community. To this end, I also have regard to the principle of totality.
60As the three charges of theft of a motor vehicle and the further charge of theft of petrol form part of a series of offences of a similar character, I propose to aggregate your sentence in respect of Charge 3, 5, 6 and 7.
61However, a degree of cumulation is required as between each of the incidents given that your offending occurred over a period of five days and involved separate spates of offending.
Sentence
Imprisonment
62I turn to sentence you, Mr McGinnes, as follows.
Caravan incident
63On Charge 1, that of armed robbery, you are convicted and sentenced to four years' imprisonment. This will be the base sentence.
64On Charge 2, prohibited person possessing a firearm, you are convicted and sentenced to six months' imprisonment.
65On Summary Charge 5, unlawful assault with a weapon, you are convicted and sentenced to six months' imprisonment.
66The sentences imposed in Charges 2 and Summary Charge 5 are to be served concurrently with the base sentence.
Threat next day
67On Charge 4, make threat to destroy property, you are convicted and sentenced to 12 months' imprisonment.
68Three months of the sentence imposed on Charge 4 is to be served cumulatively or on top of, the base sentence.
Theft of Motor vehicles and petrol
69So, in respect of Charge 3, 5, 6 and 7, you are convicted and sentenced to and aggregate term of six months' imprisonment.
70Two months of the aggregate sentence imposed in respect of Charges 3, 5, 6 and 7 is to be served cumulatively upon the base sentence.
Unlawful assault of TF and TW with a weapon
71On Summary Charge 23, unlawful assault with a weapon, you are convicted and sentenced to six months' imprisonment.
72Three months of the sentence imposed in respect of Summary Charge 23 is to be served cumulatively upon the base sentence.
Items located upon execution of search warrant
73On Charge 8, prohibited person possess firearm, you are convicted and sentenced to six months' imprisonment.
74Three months of the sentence imposed on Charge 8 is to be served cumulatively upon the base sentence.
75On Charge 9, possession of a drug of dependence, you are convicted and sentenced to a fine of $1000.
76The total effective sentence is four years and 11 months' imprisonment and a fine of $1000. I impose a non-parole period of three years and one month.
Pre-Sentence Detention
77Pursuant to section 18 of the Sentencing Act, the period of 429 days of pre-sentence detention, not including today is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered into the court records.
Section 6AAA Declaration
78Pursuant to section 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a term of eight years' imprisonment with a non-parole period of five years and six months.
Ancillary Orders
79I make the disposal and forfeiture orders sought by consent.
Licence Disqualification
80pursuant to section 89(4) of the Sentencing Act, I disqualify your licence for a period of two years from today.
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