Director of Public Prosecutions v McHenry

[2018] VCC 109

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01334

DIRECTOR OF PUBLIC PROSECUTIONS

v

KADE MCHENRY

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 January 2018
CASE MAY BE CITED AS:	DPP v McHenry
MEDIUM NEUTRAL CITATION:	[2018] VCC 109

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Sim
For the Offender	Ms B. Franjic

1HIS HONOUR:  Kade McHenry, you have pleaded guilty to one charge of aggravated home invasion and one charge of intentionally cause injury.  The facts of the matter are set out in the summary of prosecution opening Exhibit 1.  They are not disputed by your counsel.  I will not refer to the facts in any great detail.  Any reader of these reasons can refer to that exhibit to place the sentence in its full factual context. 

2In relation to charge 1 I have to consider whether s.10AC of the Sentencing Act applies.  That section and sub‑s.(1) says I must fix a non‑parole period of not less than three years unless I find under s.10A that a special reason exists.  Under s.10A(2)(b)(ii) I have to be satisfied on the balance of probabilities that you have a particular psychosocial immaturity that has resulted in a substantially diminished ability to regulate your behaviour in comparison with the norm for persons of that age.  I am so satisfied on the balance of probabilities that that has been established.  Therefore special circumstances are made out.  I do so upon a consideration of the evidence of Ian McKinnon, a consultant and forensic psychologist, who filed a report with the court dated 18/9/2017 and also gave evidence. 

3In that report at pp.4‑7 he sets out some of the reasons upon which I have reached my conclusion.  He says at p.6 you are quite immature and impressionable and likely to be easily influenced by more dominant other people into engaging in risky and antisocial behaviour without giving due consideration to the likely consequences of your action. 

4He said at p.14 that your lack of maturity predates getting involved on an ongoing basis in your social milieu. 

5At p.12 he said your ability in general to learn and to engage with others is limited by the fact that you are preoccupied emotionally and psychologically with internal issues. 

6At p.6 he said, "I think he's more likely to be more erratic, unstable and more easily influenced by other people". 

7The prosecution after a consideration of the evidence of Mr McKinnon conceded that I could be so satisfied on the balance of probabilities that essential circumstances were made out. 

8I add that I was very impressed by the evidence of Mr McKinnon. 

9Of course that is far from the end of the matter.  This is serious offending.  You were aged 20 at the time of the offending.  The victim, Ben Anthony, was a cannabis dealer who had a safe at his premises.  Upon entering you were disguised and possessed knuckle dusters.  You and your co‑offenders demanded to know where the safe was.  You punched Anthony with knuckle dusters and thereafter punched and kicked him in the head.  Your co‑accused stabbed him.  Your original aim in going to the premises was to get cannabis. 

10Engaging in cannabis dealing, as Mr Anthony was I am told, no doubt that can be a risky business but Mr Anthony is still entitled to the full protection of the law.  Your involvement was violent and callous. 

11In mitigation your counsel relied on:

12Your age;

13You have no prior convictions;

14Your personal circumstances as set out in the report I have mentioned of Mr McKinnon.  Your upbringing was marked by deprivation, exposure to violence and lack of parental guidance.  You began to abuse substances at an early age.  The full circumstances of your upbringing are set out in his report. 

15You have had very little work.  You finished school in Year 9.  You began using substances during your early adolescence, including cannabis, alcohol, amphetamine and MDMA. 

16Mr McKinnon diagnosed you with post‑traumatic stress disorder and polysubstance abuse disorder.  He said your functional intelligence fell within the normal range. 

17He said you do not possess an inherently antisocial or criminal disposition.  He said you appear to be genuinely remorseful over your offending and do not appear comfortable with having a criminal record and there was a complete absence of youthful criminal bravado.  He also mentioned psychoactive elements of ice which you had taken prior to this and would make you more prone to impulsive and erratic behaviour.  Of course that is no excuse. 

18He said that should you be imprisoned for a significant term you appear to cope well enough in the prison environment, however prison staff should assess your medication needs and provide you with ongoing individual therapy.  He said essentially you are likely to be a follower within the prison system. 

19Your counsel submitted that I could look at rehabilitation.  You have worked as a billet in the prison, undertaken courses and remained drug‑free. 

20She asked me to consider the principle of totality, that is it was one incident. 

21I asked for an extended Community Corrections assessment report, which I have received.  In that report you conveyed remorse for your offences, expressing empathy towards the victim and his family and concerns over his own term of imprisonment. 

22It said you were assessed as being at a high risk of recidivism, that is re‑offending. 

23You have had infrequent employment opportunities limited to labouring. 

24It outlined the circumstances of the accommodation available to you from your brother. 

25It said that in order to reduce your risk of re‑offending it was important that you acquire something to occupy your time, such as employment. 

26Your brother gave evidence to the court and I was also impressed by his evidence.  I certainly hope you do not let him down. 

27OFFENDER:  I won't.

28HIS HONOUR:  He has offered to provided accommodation to you in his new house with his partner.  He has been in contact with you on the phone and says that a couple of rules will be put in place.  Namely that associates of yours who are in the drug world are not welcome at the home and that if you begin using drugs again you certainly will not be able to stay there. 

29He set out some of the problems at p.24 of his evidence that both of you suffered from in your upbringing.  He said he would be trying to get you to be independent and to be able to get your own place in the future.  He said he can be there to support and help you.  He said that you were very remorseful and it is not something you want to pursue in the future. 

30As I said, I was very impressed by the nature of his evidence and the fact that he was willing to commit to you in full knowledge of the offending that has occurred.  Many people in your situation do not have that support.  If you go out and abuse that, do not come back to me with plenty of excuses. 

31In sentencing you I am required to balance the interests of the community in denouncing criminal conduct, the interests of the community to seek to ensure as far as possible offender are rehabilitated into society.  I express my denunciation of your behaviour. 

32The basic purposes for which a court may impose a sentence are punishment, general deterrence, that is to try and get it into the mind of others not to do this, specific deterrence, that is to try and get it into your mind not to do it again, denunciation and protection of the community. 

33In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim if any. 

34Amongst other matters in sentencing I have taken into account:

35Your plea of guilty, which is at a relatively earlier stage.  You obtain a discount because it is an expression of responsibility by you for your offending and has saved the court the time and expense of a criminal trial. 

36Your background and circumstances. 

37Your age.  You are a young person.  You have already spent considerable time in custody and will spend some more time. 

38You have no prior convictions. 

39The fact that your brother has offered accommodation to you. 

40I have also taken into account the victim impact statement of the ex‑partner of the victim. 

41Weighing up all those matters I intend to impose an aggregate sentence pursuant to s.9(1)(i) of the Sentencing Act in that the events concerned the same victim and happened within a very short period of time. 

42I thus impose the following sentence.  I sentence you to a term of imprisonment of 18 months, thereafter to be placed on a two year community corrections order. 

43Is he still living at the ‑ where's the brother's, is it Ballarat? 

44MS FRANJIC:  It's in a suburb just near Ballarat, Your Honour.

45HIS HONOUR:  It will be at Ballarat then.

46MS FRANJIC:  It would be Ballarat, yes.

47HIS HONOUR:  To report at the Ballarat Community Corrections.  Special conditions of supervision, treatment and rehabilitation for drugs, mental health assessment and treatment, offending behaviour programs.  I am not going to impose an unpaid community work condition for two reasons.  My usual practice, not always, is that if people have served a substantial amount of time in gaol they should not have to do community work.  Plus of course if you do community work in many respects you are placed back into the same society you are trying to escape. 

48It is clear that the 322 days that you have already served be part of the term of imprisonment I have just imposed. I declare pursuant to s.6AAA of the Sentencing Act that if you had proceeded to trial and you were convicted by a jury, and 6AAA is always a bit of a guess, I would sentenced you to something like six years with a non‑parole period of four.

49The prosecution have asked for a 464 order.  I think that is the only order they want. 

50MS FRANJIC:  Not opposed, Your Honour.

51HIS HONOUR:  Mr Sim, could you get your instructor to fill out the one I have, or have you got one there with the relevant details on it?  Thanks Madam Associate. 

52Mr McHenry, I have made an order for the taking of a forensic sample from you.  The police will come around at some stage to do that, probably by way of a swab.  If you change your mind and decide to resist that, they can use reasonable force to enable that procedure to be undertaken. 

53I make the order having considered the seriousness of the offending, because of the seriousness of the offending and the fact that it is not opposed. 

54You may be seated for the moment and the CCO will be prepared.  Ms Franjic, if you could take it up to your client and see if he wants to sign it.

55MS FRANJIC:  Yes, Your Honour.  May I approach him, Your Honour? 

56HIS HONOUR:  Yes. 

57MR SIM:  Your Honour, the forensic sample order has been prepared. 

58HIS HONOUR:  I will sign that.  We better put Ms Franjic in I think.  I never know whether to say Ms or Miss or whether anyone cares any more. 

59MS FRANJIC:  It's much of a muchness, Your Honour. 

60HIS HONOUR:  Ms always sounds like a bee to me.

61Mr McHenry, the CCO commences upon the completion of your term of imprisonment and the conditions are set out there and I have already told you what they are.  Plus there are mandatory conditions which your counsel will explain to you. 

62You will be asked to say whether you understand the effect and conditions of the order and consent to it being made.  If you were to breach the order, that is you decide not to go to any of the places they tell you to go to, or you start re‑offending, and I know this is a revelation to many people but using illegal drugs is that, it is illegal and that would be a breach of the order.  If you do breach it you will be charged with the offence of breach and these matters will come back and the court will have to decide what to do with you again for these matters.  It will not be because I will be long gone by then, it will be someone else. 

63Ms Franjic, would you like to take that up? 

64MS FRANJIC:  Yes, Your Honour.  Thank you, Your Honour.  I note that there was also a charge of, a summary charge of commit an indictable offence on bail that was uplifted.

65HIS HONOUR:  Was it?  I had completely forgotten that.

66MS FRANJIC:  I note that that's not on the community corrections order.

67HIS HONOUR:  I hadn't even mentioned that.  Is that right, Mr Sim? 

68MR SIM:  That is correct, Your Honour.  Thank you to my learned friend for mentioning that. 

69HIS HONOUR:  What are the penalties for that? 

70MR SIM:  It's up to three months' imprisonment, Your Honour.  Your Honour could ‑ I don't think there's any ‑ my learned friend is saying Your Honour can prove and dismiss it.  I don't think there's any legislative prohibition in Your Honour incorporating into the overall sentence if you wanted to. 

71HIS HONOUR:  I think there's a Court of Appeal decision.

72MR SIM:  I'm sorry, Your Honour? 

73HIS HONOUR:  I think there's a Court of Appeal decision that says I shouldn't do that.

74MR SIM:  You shouldn't.

75HIS HONOUR:  So on that ‑ what is it ‑ ‑ ‑

76MR SIM:  Up to three months.

77HIS HONOUR:  What's the offence again? 

78MR SIM:  Committing an offence while ‑ ‑ ‑

79MS FRANJIC:  Committing an indictable offence.

80HIS HONOUR:  On that offence I sentence him to three weeks concurrent with the sentence I have already imposed.

81MS FRANJIC:  If Your Honour pleases.

82MR SIM:  If Your Honour pleases.

83HIS HONOUR:  Thank you both for reminding me of that.  So that order will have to be done again, will it? 

84MS FRANJIC:  The? 

85HIS HONOUR:  CCO? 

86MR SIM:  It's a separate sentence, Your Honour, in effect.  A separate sentence that runs concurrent with the sentence imposed for the indictable matters.

87HIS HONOUR:  Can I have the CCO that I signed?  Thank you, that's done.  Are there any other matters I need to attend to, Ms Franjic? 

88MS FRANJIC:  No, Your Honour. 

89HIS HONOUR:  Mr Sim? 

90MR SIM:  No, nothing else, sir.

91HIS HONOUR:  Thank you.  You can take Mr McHenry out, thank you. 

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