Director of Public Prosecutions v McGuiness
[2019] VCC 1069
•11 July 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTIONCR-19-00132
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAINE MCGUINESS |
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| JUDGE: | HIS HONOUR JUDGE SEXTON |
| WHERE HELD: | Latrobe Valley |
| DATE OF HEARING: | 11 July 2019 |
| DATE OF SENTENCE: | 11 July 2019 |
| CASE MAY BE CITED AS: | DPP v McGuiness |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1069 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr. D. O'Doherty | Office of Public Prosecutions |
| For the Accused | Mr. A. Malik | Sullivan Braham |
HIS HONOUR:
1Daine McGuiness, you have pleaded guilty to one charge of aggravated burglary and one charge of intentionally causing injury.
2The maximum penalty for aggravated burglary is 25 years' imprisonment and the maximum penalty for intentionally causing injury is ten years.
Circumstance of Offending
3The circumstances of your offending were set out in the Summary of Prosecution Opening on Plea, dated 11 February 2019, which was tendered at the plea hearing and marked Exhibit A. There being no exception to it, I regard it as a statement of agreed facts and I have had regard to it in determining the appropriate sentence in your case.
4By way of brief summary, in October last year having completed university studies for the year, you were residing at your family's home in Sale. In mid-October of 2018 soon after you had turned 20 years of age, you discovered that the young female with whom you had been in a 12 month relationship had been unfaithful to you, in that she had slept with the victim in this matter, Jack Harper, the young man also then aged 20.
5On the night you discovered this infidelity you apparently attended at the victim's house with the intention of confronting him, however your friends persuaded you not to proceed with the confrontation and to walk away. You spent the next few weeks attempting to come to terms with this situation.
6On Sunday night, 28 October 2018, after seeing each other at a local hotel, you and the victim exchanged words. When the victim approached you to attempt to sort the situation out, you retreated, saying you would catch up with him during the week.
7Later, you exchanged mutually insulting Facebook messages with the victim and you indicated that you intended to ‘catch-up’ with him during the week. Sadly, you did just that on the evening of Tuesday 30 October 2018.
8At approximately 8.45 pm you attended the victim's house armed with a cricket bat. After knocking on the front door and being told that you would not be let in, you proceeded to kick at the door five or six times, before stopping and making your way towards the rear of the property, scaling an eight foot fence to gain access to the garage and ultimately entering the house through an unlocked door whilst still armed with the cricket bat. During this time, the victim had made his way into the kitchen and rung a friend and asked him to come over. You then confronted the victim in the kitchen. You put the cricket bat down before approaching him and punching him to the side of the face.
9There followed a scuffle between you, with the victim trying to defend himself by swinging punches at you, pushing you, and at one point placing you in a headlock hold. However, this did not deter you, as you still managed to again punch the victim in the face repeatedly. At one point, as you wrestled free from the headlock hold, you lost your T-shirt and cap. The victim at this point made his way to the bedroom where you followed, asking, 'Is this where you did it?' and punched him to the nose causing it to bleed.
10Soon after, you again followed the victim into the kitchen, forcing him into the pantry where you again continued to punch the victim. When the victim said, 'That's enough' you replied, 'No, we are not done yet.' You then pursued him into the lounge room, where the victim had run, after you had picked up the cricket bat, and he attempted to close the door behind him. You prevented this happening, at which point you wrestled with each other for control of the cricket bat.
11Eventually, the victim was able to push you off-balance and run from the house where, thankfully, his friends had just arrived. You subsequently left the house and returned to your family home.
12You were arrested by police about an hour later after the matter had been reported by the victim. You were then interviewed where you admitted wrongdoing and expressed regret and remorse.
13You victim in this matter, Jack Harper, completed a victim impact statement on 8 February 2019, and I have taken the contents of it into account in determining the appropriate sentence. In that statement, Mr Harper indicated that he goes over the incident in his head and often thinking about it causes anxiety and anger. He also spoke of conflict between your friends and his. He concludes in relation to the emotional impact of the crime, 'All in all, nothing too serious.' I suspect your victim has taken a rather stoic approach to what must surely have been a frightening experience.
Gravity of Offending and Level of Culpability
14The gravity of your offending is reflected in the statutory maximum penalties, 25 years and ten years' imprisonment respectively. Aggravated burglary, in particular, is an extremely serious offence. Your conduct involved a serious violation of the sanctity of the home, made all the worse by it occurring at night time. You embarked on a sustained and seemingly determined endeavour to gain entry as a trespasser. Not being satisfied with the victim's refusal at the front door, after kicking at that door repeatedly, you then scaled the fence to gain entry via the garage and another door. Your presence in the kitchen of the victim's home, armed with a cricket bat, would no doubt have caused great fear in him. Not content with this serious criminality, you then embarked on distinct criminality through a fairly sustained assault on Mr Harper in various locations in the house.
15In that regard I note your own description to police in your police interview where you said in answer to question 11, 'It' - that is, the assault - 'carried on for a fair while.'
16Whilst your victim himself engaged in the physical altercation with you, he was no doubt simply trying to defend himself from your attack on him.
17When describing the physical altercation inside the house to police at answer 115 of that police interview, you said, 'It was a pretty even fight at the beginning, but as it wore on, I sorta took over.' Some of your verbal exchanges had a menacing flavour; for example, saying, 'Maybe' when asked by the victim if you were going to kill him.
18Whilst there is no suggestion that the cricket bat was used in this assault, and indeed the injuries to the victim seem moderate in the circumstances, this was nevertheless, a very concerning incident.
19The genesis of your offending appears to be your discovery of Mr Harper's apparent involvement with your then-girlfriend and your inability to deal with associated feelings in a peaceful manner, followed by your dealing with him two days prior to your offending, and ensuing Facebook message conversation.
20Irrespective of what your victim did or did not do, or said or did not say, your actions were completely unwarranted and inexcusable.
21Clearly, you ruminated about this supposed slight for some weeks. This was not the act of someone briefly overcome by the heat of the moment upon discovering infidelity. You had some weeks to process this information and choose an alternative response, even in the final two days leading up to your offending. Instead, unaffected by alcohol, you decided to physically confront the victim in the sanctity of his own home.
22The offending captured by the crime of aggravated burglary covers a broad spectrum of behaviour. In all the circumstances, in my view, your offending falls towards the lower end of aggravated burglary offences.
23I accept that your actions were the result of emotional immaturity and youth and this was not a particularly well thought-out crime. There was no great sophistication to your endeavour. You were on your own and there was no suggestion that the cricket bat was used or threatened to be used.
24As the injuries sustained to the victim were reasonably moderate, I do not regard this instance of intentionally causing injury to be at the high end. However, your criminality on this evening involved the commission of two distinct forms of offending.
Sentencing Purposes Relevant to the Crimes
25People in the community rightly expect to feel safe in their own home. By breaching that expectation in the manner in which you did, any penalty must reflect the sentencing purpose of just punishment, denunciation, community protection and general deterrence. Given your absence of prior convictions, together with your frank admissions to police and demonstrations of remorse, I am satisfied that specific deterrence is not a primary consideration in your case.
Personal Circumstances and Mitigatory Factors
26I accept that your criminal behaviour on this night is completely at odds with your otherwise good character, indeed, the person you appear to be.
You were still aged 20 and in the eyes of the law, ‘a young offender’. One of the great aims of the criminal law is the rehabilitation of young offenders, particularly those with an absence of any prior criminality. One of the sentencing purposes to which I must have regard is that of rehabilitation. In your case, because of your youth and absence of prior convictions, this is a particularly important sentencing purpose, and I have taken into consideration the authorities and principles in relation to sentencing of young offenders, and the primacy of rehabilitation in determining an appropriate sentence in your case.
27Briefly by way of background, you are the eldest of three boys to your parents, Matthew McGuiness and Leanne Hearsey. Your counsel described an unremarkable upbringing, in the sense of there being no notable traumas or events that have impacted negatively upon you. Your parents separated in 2010 when you were 11 years old. Subsequently, you have resided with your mother and then your mother and her husband, Barry Hearsey, after the commencement of their relationship in 2016. I was informed that you have remained in contact with your father, who remains supportive of you.
28In terms of your education, you completed Year 12 in 2016 at Catholic College Sale, obtaining a score which enabled you to embark on tertiary studies at Deakin University, where you have commenced a Bachelor of Sports Science. I was informed that you have an ambition of one day being a PE teacher.
29Throughout your latter schooling, you have worked. While living in Melbourne at the early stages of your degree, you worked for a labour-hire company, and more recently since returning to Sale (and furthering your studies through distance education), you have worked casually as a fencing contractor and as a lifeguard at the Sale swimming complex.
30You have been, and are, heavily involved in sport (football and cricket) from both a playing and coaching perspective. You have not encountered any issues with drugs or alcohol and as I have stated, come before me as a young man with no prior convictions.
31The one challenge you appear to have faced is in commencing tertiary studies in Melbourne in 2017, requiring you to move from Sale. You experienced anxiety during this period and were ultimately prescribed anti-depressant medication which I understand you still take. To a degree, this reflects a degree of psychological fragility on your part.
32I have had regard to the five character references tendered on your behalf including a reference from your step-father, Barry Hearsey. They all speak as one in terms of your deep remorse for your offending and your otherwise good character. You are clearly very well regarded by these individuals who have taken the time to write impressive testimonials for you, and you have clearly let these people down through your shameful actions. I have carefully read those statements and taken them into consideration in determining an appropriate sentence in your case.
33I have also had regard to the psychological reports of Debra Smith and Eric De Bruyn, together with the documentation from the Inglis Medical Centre. Significantly, upon your arrest and being charged, you commenced psychological counselling with Mr De Bruyn, dealing with the underlying causes of your offending. I was told that you have now seen Mr De Bruyn six times. Both Mr De Bruyn and Ms Smith noted your remorse for the offending. Ms Smith referred to your emotional immaturity in the context of your offending and concluded that through treatment you have developed insight into your offending. These reports are, in the main positive, and I have taken them into account in determining an appropriate sentence in your case.
Submissions
34Your counsel relied on the following mitigatory factors, all of which I accept as having significant applicability in your case; your plea of guilty (which I accept was entered at the earliest opportunity), your full and frank admissions to police, your clear and genuine expressions of remorse (through your plea, to police, your treaters and through the character referees), your absence of prior convictions and otherwise good character, your youth and your prospects of rehabilitation are said to be excellent, a description with which I agree.
35Your counsel submitted that in all the circumstances, all of the sentencing purposes could appropriately be met through a community correction order, notwithstanding the gravity of your offending. The prosecution in this case, conceded that a community correction order would be an appropriate disposition in this case, given the exceptional nature of it.
As I made clear during submissions, the offending to which you pleaded guilty is extremely serious. Aggravated burglary carries the maximum penalty of 25 years' imprisonment, reflecting the gravity of conduct captured by aggravated burglary. Previous decisions of sentencing courts in Victoria have made it clear that aggravated burglary would normally attract a substantial sentence of imprisonment. I have considered the relevant authorities, including Hogarth v The Queen [2012] VSCA 302 in taking into consideration current sentencing practices, one of the matters to which I must have regard. Clearly, the imposition of a non-custodial disposition is the exception to the rule.
36After giving this matter consideration, I have determined that all of the competing sentencing considerations can be met in this case through the imposition of a substantial community correction order. As was made clear in Boulton's case, a community correction order is intrinsically punitive and is capable of serving the sentencing purpose of general deterrence.
At paragraph 114 of the decision of Boulton the court said, as follows:
'The CCO option offers the court something which no term of imprisonment can offer, namely the ability to impose a sentence which demands of the offender that he take personal responsibility for self-management and self-control and, depending on the conditions, that he pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or avoid undesirable persons and places. The CCO also enables the offender to maintain the continuity of personal and family relationships, and to benefit from the support they provide. In short, the CCO offers the sentencing court the best opportunity to promote simultaneously the best interests of the community and the best interests of the offender, and those who are dependent on him.'
37As I made clear in submissions, this has been a difficult sentencing exercise, given the clear tension between the very serious nature of the offending and the mitigatory factors that exist in this case. But in the end, I have determined that it is ultimately in the community's interests for you to remain living with your family, studying and leading a positive life in your local community, given your young age and otherwise blameless life.
38This morning I requested that you be assessed for suitability in relation to the undertaking of a community correction order. That report has been returned and the assessment is a favourable one. You have been assessed as being suitable for a community correction order, with community work and treatment and rehabilitation in relation to programs to reduce re-offending being recommended.
39I have determined that a community correction order with the treatment condition recommended, in addition to the unpaid community work is appropriate, given some indication of prior psychological vulnerability and the need, in my view, for ongoing anger management attention given the nature of your offending.
40Mr McGuiness, before formally passing sentence on your, I need to satisfy myself that you are providing informed consent in relation to the imposition of a community correction order. Has Mr Malik explained to you what is involved in the imposition of a community correction order?
41OFFENDER: Yes, Your Honour.
42HIS HONOUR: Has he gone through both the core conditions and the extra conditions that I have described so far?
43OFFENDER: No, not in full, Your Honour.
44HIS HONOUR: All right. Pardon me.
45MR MALIK: Want me to approach Your Honour?
46HIS HONOUR: Yes.
47MR MALIK: Thank Your Honour, I had discussed the special conditions, but not the core conditions with him previously.
48HIS HONOUR: Just getting a copy of the Act brought in so that I can reiterate those conditions to your client.
49MR MALIK: Of course. My apologies, Your Honour.
50HIS HONOUR: Mr McGuiness, I am not going to go through each of the mandatory conditions of the community correction order. I understand they have been explained to you now briefly.
51By way of example, the most important one is that you must not commit, whether in Victoria or outside Victoria, during the period of this order, any offence punishable by imprisonment. Do you understand that?
52OFFENDER: Yes, Your Honour.
53HIS HONOUR: And you understand that virtually any crime these days is punishable by imprisonment, so anything really, any transgression by you would be a breach of this order. Do you understand that?
54OFFENDER: Yes, Your Honour.
55HIS HONOUR: You understand that if you get into trouble in relation to compliance with the order or there is some reason why you are unable to comply with it, you have the option of coming back to court and seeking to vary the order.
56OFFENDER: Yes, Your Honour.
57HIS HONOUR: Yes, I would encourage you to be proactive in relation to your compliance with the order and if there are any problems, to keep in touch with your legal representative so that matters can be advanced before breach proceedings are committed, do you understand that?
58OFFENDER: Yes, Your Honour.
59HIS HONOUR: You understand the conditions that I am proposing are as follows. The order will run for two years, there will be 300 hours of unpaid community work to be completed within that two year period.
60That is a significant punitive aspect, or punishment aspect, to this order and you will need to undergo treatment and rehabilitation; that is, in your case, programs to reduce re-offending, which I expect will be something to do with anger management. Do you understand that?
61OFFENDER: Yes, Your Honour.
62HIS HONOUR: You understand you will need to report into the Corrections office in Sale by 15 Jul,y so in a few days' time.
63OFFENDER: Yes, Your Honour.
64HIS HONOUR: Yes. Knowing the conditions that are going to be imposed and consequences should you breach, that being you would be brought back before the court, probably before me, and you would be re-sentenced in relation to this matter as well as being punished for breaching the order. Do you consent to the imposition of a community correction order?
65OFFENDER: Yes, Your Honour.
66HIS HONOUR: Mr McGuiness, do you understand how close you came today to receiving a term of imprisonment?
67OFFENDER: Yes, Your Honour.
68HIS HONOUR: I certainly hope you are aware that the reason we are sitting here at twenty to four is that I have given this matter anxious consideration during the day and I have been very troubled in relation to the nature of the offending.
69So this has not been an easy process. I hope you realise the opportunity that is being given to you and you comply with the community correction order to the letter. You understand?
70OFFENDER: Yes, Your Honour.
71HIS HONOUR: If you come back before me, do not expect leniency in relation to any breach proceedings. You understand?
72OFFENDER: Yes, Your Honour.
73HIS HONOUR: Yes. All right, the formal orders are as follows; in relation to both charges Mr McGuiness, you are convicted and ordered to undergo and complete a community correction order.
74I am imposing one community correction order in relation to both offences pursuant to s.40(1) of the Sentencing Act, both offences forming part of a series of offences of similar character.
75The conviction is being recorded because of the seriousness of the offending, I have taken into consideration the relevant factors in the Sentencing Act in terms of whether or not to record a conviction.
76In my view, a conviction is most certainly appropriate, and so you are convicted and ordered to undergo a two year community correction order.
77In addition to the mandatory conditions, you are ordered to complete 300 hours of unpaid community work and to undergo programs addressing offending behaviour.
78Pursuant to s.6AAA of the Sentencing Act, I declare that but for the plea of guilty, I would have imposed a total effective sentence of three years and six months with a non-parole period of two years and four months.
79I will make the ancillary orders that have been sought, that being a disposal order, which is not opposed, and a forensic sample order pursuant to s.464ZF(2) of the Crimes Act, it also not being opposed. I make that order on the basis of the seriousness of the circumstances of the offence, the fact that the order was not opposed and that the granting of the order is in the public interest.
80Mr McGuiness, that is an order for the taking of a sample. Has Mr Malik explained what this is all about to you?
81OFFENDER: I believe so, Your Honour.
82HIS HONOUR: Yes, you understand that in the first instance it will be the taking of a saliva sample, a scraping from inside your mouth. You understand that?
83OFFENDER: Yes, Your Honour.
84HIS HONOUR: You will receive documentation about that. In the event that you do not consent ultimately to the taking of the sample, I need to inform you that the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that?
85OFFENDER: Yes, Your Honour.
86HIS HONOUR: Yes, all right, you can take a seat Mr McGuiness. The community correction order will come down for signing now. Mr Malik, if you could accompany my associate down.
87MR MALIK: Of course, Your Honour.
88HIS HONOUR: Mr O'Doherty, have I covered everything?
89MR O'DOHERTY: Yes, you have, Your Honour.
90HIS HONOUR: Yes. Anything I have missed Mr Malik?
91MR MALIK: No, nothing from me. Thank Your Honour.
92HIS HONOUR: Yes, I will sign the ancillary orders in Chambers, Mr O'Doherty. Yes, thanks for your assistance Mr Malik and Mr O'Doherty.
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