Director of Public Prosecutions v McInnes
[2024] VCC 2024
•11 December 2024
| IN THE COUNTY COURT OF VICTORIA CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-23-00556
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CRAIG McINNES |
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JUDGE: | HIS HONOUR JUDGE MOGLIA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 October, 11 December 2024 |
DATE OF SENTENCE: | 11 December 2024 |
CASE MAY BE CITED AS: | DPP v McInnes |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2024 |
REASONS FOR SENTENCE
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Subject: Guilty Plea – CCO – Domestic Violence – Non-Conviction
Catchwords: Family Violence – Assault – Recklessly Cause Injury – Impact on Offender’s career – strong prospects of rehabilitation – low risk of re-offending – non-conviction with 2 year CCO.
Legislation Cited:
Cases Cited:
Sentence: Community Correction Order without conviction for 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | C. Paganis | Office of Public Prosecutions |
For the Accused | L. Cameron | Dawes & Vary Riordan |
HIS HONOUR:
1Craig McInnes, you have pleaded guilty to one charge of common law assault and one charge of recklessly causing injury.
2The agreed basis for your guilty plea is set out in the amended prosecution opening dated 24 September 2024 and I adopt those facts in these reasons.
3In summary, on 27 September 2020, following an argument at home with ST, your partner at the time, who at that stage you had been living with for about nine months, you held your fist up to her face, grabbed her around the throat before she screamed at you and walked away (Charge 1).
4On 22 May 2021, you both went on a winery tour during which you both had too much to drink. After being dropped off in town, you were both verbally aggressive to each other about going home. ST threw the house keys on the ground and told you to go home, which you did.
5At about midnight, ST returned home where you were asleep. She attempted to wake you by knocking but was unsuccessful. She then ripped a flyscreen off from your bedroom window and climbed in. She got into bed with you, telling you she had broken your window. Having been woken by that, you got into a fight with her in bed. You got on top of her and hit her chest with both of your hands, you punched her in the side of the head, you choked her, and she could not breathe. You left the room, and she called a friend for help. When you returned, you continued to assault her, including choking her which affected her vision.
6ST was able to push you off, but you repeatedly punched her in the leg, pinned her down and bit her stomach (Charge 2).
7Police attended that night, and you were arrested, and a Family Violence Safety Notice was served on you.
8ST was assessed by a medical officer following the incident and they observed, among other things, trauma to her left ear, left eye and left lip causing bruising and a ruptured eardrum.
9In her victim impact statement (Exhibit A), ST spoke of her fear during the incidents and being deaf in one ear for a month and a half following. She had to take time off work. She describes the emotional impact as being massive and that she suffered with post trauma symptoms for which she had to see counsellors and still feels angry.
10She has required medication just in order to sleep and finds having to rely on others for help, including her family, as humiliating and degrading. She has withdrawn from friends. Ultimately, she has moved towns and works in a different field. She showed courage, in my view, and candour in her victim impact statement, and she has done so including by stating that she has set up goals to try to move on and is able to feel positive about her future. I thank her for helping me understand, through her statement, the consequences of this offending.
11About two months after the second incident, on 21 July 2021, police interviewed you for a second time and you agreed that there was a dispute in the bedroom and an altercation at home that night but denied choking or hitting ST in the head. Clearly, that is not a denial you persist with.
Conduct of the case
12After exchanges of offers to settle the case from both you and the prosecutor, you sought a sentence indication hearing, based on a prosecution offer, which was conducted on 25 September 2024. It was unopposed.
13You accepted the indication that was given and were arraigned and pleaded guilty on 17 October 2024. Your plea, I find, demonstrates your acceptance of responsibility and your willingness to facilitate the course of justice, both of which are significant.
14I accept that your plea demonstrates remorse for your actions, even if the plea came after some time, albeit on changed charges. I accept that the charges that were the subject of the indication were different to those which you originally faced. I was told that originally you faced much more serious charges, which I accept.
15Importantly, in cases of family violence, your plea results in a considerable benefit to the community, by avoiding the need for a trial, including the need for ST to be questioned before a jury.
Personal circumstances
16You are now 34. You were born and grew up in Scotland, primarily in Glasgow, where your parents and two sisters still live, and you enjoy good relationships with them.
17You completed secondary school there where you were a good student, but you were bullied in high school and you found that to be a great difficulty.
18You worked there as a qualified electrician for about six years, before moving to Australia in 2012 and you are now an Australian citizen.
19Since coming here, you have remained fully employed and from July 2018, you have worked for Fire Rescue Victoria where you are now a leading firefighter.
20In a reference from David Pitcher, a station sergeant, he recognised you as diligent, affable and highly professional in your work. He acknowledges your personal disclosures to him about the offending, and the role that alcohol played in it at the time,. He also noted his observations of your commitment to improvement and putting that kind of behaviour behind you.
21As to relationships, you have had four significant relationships in your life, and this is the only relationship in which there has been an allegation of family violence. So much was not disputed by the prosecution.
22You have been in a relationship with your current partner, Praveena Benedict, since the middle of 2021. You live and have two children together with her and you live in suburban Melbourne now.
23Your partner states that you have disclosed the offences to her and spoken in depth with her about them. You have voluntarily sought and are continuing to receive ongoing psychological help to ensure change. She observed the impact on you, for example, of no longer having a Working with Children's Check due to this case. She has seen you as nothing but an amazing father and role model for your children. She says from her now somewhat lengthy observations, your offending is out of character, and she has never once seen a violent side of you.
24In a reference from Nathaniel Russell, a retired senior member of Victoria Police, he notes that he has known you for some years, particularly through the music and bagpiping that you have been engaged with since your early years, and still are whilst you live in Australia. He has known you for 12 years, over which time he has had regular contact with you. He says that he has observed you to be ‘absolutely devastated by the allegations’ and ‘distressed’ about them.
25He confirms that you have engaged in counselling since mid-2022, to ensure that any repeat of such behaviour is not possible, and that his observations of you is that that kind of conduct is out of your character. He has noted also the consequences he has observed on you for no longer having a Working with Children Check, and suffering the anxiety and stress about the effect that a finding of guilt or conviction in this case might have on your career.
26Importantly, he has confirmed that you have disclosed and have been candid with your colleagues and managers, including him, about your conduct and that you are embarrassed. As to your reputation otherwise, he says that he has never heard anything but favourable comments about your character. He has observed you engage in voluntary teaching and leadership roles in various ways, and he notes that you were recently promoted this year to a leading firefighter.
27All three of the references are marked as Exhibit 1.
28Since the offending you have engaged in counselling with Access Psychology through an Employee Assistance Program. You have also remained on a waiting list and recently commenced a Men's Behaviour Change program through Relationships Australia, whose document dated 4 December 2024 (Exhibit 2) confirms that you are an ongoing participant in that program.
29You report through your counsel that you have reflected on the negative impact of your drinking, your conduct on these days and that you have taken steps to reduce alcohol consumption.
30You have no prior convictions, and no subsequent matters are pending.
Sentencing issues
31The maximum penalties for both Charges 1 and 2 are each five years' imprisonment.
32Family violence is rightly described as a scourge in our community. The objective gravity of violence against a partner in the home is rightly observed to be high. The consequences of such offending, as has been seen in Exhibit 1 by ST, can have not only unintended but serious and ongoing consequences to a person. Even if they are unintended, those consequences are real and the nature of family violence is such that in acting out in the way that you did, you have brought upon the victim ST the kind of consequences that she has described, regardless of whether you intended them or thought them through.
33In your case, there being no history of family violence, no criminal history, the fact that you were not on bail or any other orders at the time, certainly not for any repeat such offending, that helps me to place these incidents in context, not only in your life and STs, but in respect of other offenders and other cases. Your role in the offending is serious because you acted alone. Whilst you may have been alcohol effected, that does not mitigate, that is, make your offending less serious, but it helps to explain how it is that it came about.
34As the prosecutor fairly conceded, you were both in a state of intoxication at the time. Indeed, in accounts you have both given to different people, you both claimed to be acting in self-defence in respect of various things and I accept that a trial in those circumstances may well have been highly damaging to everybody, time consuming and, frankly, to be avoided. In those circumstances I find and accept that the plea was significant.
35Having said that, I have not lost sight of the fact that the allegation of choking, let alone repeat choking, is a particularly concerning facet of this offending.
36Family violence must be sentenced in a way that communicates to the community a message of general deterrence. It must also make clear that such conduct is denounced and that it attracts just punishment, and I intend to achieve all of those results.
37There is significance in the fact that you have no criminal history and that other than this offending, your character has been observed by a range of people, not only friends, as being good.
38I find that the need for specific deterrence and community protection by way of increased penalty is very much reduced and those matters do not feature highly in the sentence that I will impose.
39I note in that respect, that there has been no breach of the intervention order that has been in place since this time; that you have moved away from Shepparton where the events occurred, as indeed has ST; and I find that you are very much at a reduced risk of further offending of a similar nature.
40I accept, as your counsel told me, that this proceeding has been costly for you. Of course by way of funds that you have had to pay, but also reflecting the amount of time that the case has taken and the number of times you have had to come to court, I accept that in all the circumstances the way the matter has proceeded is likely to have achieved some specific deterrence.
41I accept that there has been a delay since your offending. It is now three and a half years since the second incident, longer since the first. During that time, the court has had the benefit of observing those who have monitored and observed you, that there has been no further offending, in fact there is evidence of the opposite; that your conduct including in the family environment has been good. I accept that you have engaged in appropriate and precautionary treatment against future offending.
42Whilst there are two charges relating to two incidents, I will have regard to totality and make orders to ensure that the total sentence today does not go beyond a proper reflection of the total of your offending.
43As to your prospects of rehabilitation, I find them to be very good. I accept that you have already achieved a deal of progress along the road to avoiding any such repeat. I accept that your engagement voluntarily with counselling and with the Men's Behaviour Change Program demonstrates a degree of insight which is important.
44I accept that your plea, accepting the account of ST about what happened, demonstrates a maturity of approach and an appropriate acceptance of responsibility.
45I accept that you have disclosed what happened to others. That is not always the case in cases such as this, and you are to be commended for doing so. Of course, you have engaged in treatment and that is ongoing and that your disclosure has meant that you have lived for some time now, being the subject to disciplinary procedures.
46Ultimately, the indication I gave, having heard from both parties, was that a community corrections order would be appropriate. On the question of whether a conviction should be recorded, as I heard from the parties, I was particularly concerned about what effects might flow to you in your career from a conviction and/or a finding of guilt.
47Unfortunately, the legislative provisions in this State are such that a court who, in my view, should be regarded as providing the final word on what happens about criminal offending, is unable in this case and perhaps generally, to be put in the full picture with respect to consequences that will flow against you or other offenders in similar circumstances. That is, this court will not know prior to sentence, and therefore cannot take into account in imposing sentence, what effect your offending will have on your career.
48I find that that legislative circumstance is unfortunate. Having been convinced however, that that is the case, and that I am not to know what might flow against you in your career, I was not satisfied that it was necessary to place you in a position of losing your job or losing your role as a firefighter.
49Having not been able to be informed, even as to the likelihood of that occurring, acknowledging the frustration that that gives rise to for the court, I indicated that I would not convict you as a consequence of that conundrum and I will not.
50It was ultimately because of this that I concluded that a community correction order would be appropriate, given your history and your conduct since, and that I would not convict you, in part, because of the problem with respect to not knowing what consequences might flow in your important work.
51Exhibit B is the CCO assessment, dated 24 October 2024. It finds that you are a low risk of further offending, that you are suitable for a CCO, that you were forthcoming and took full responsibility for your actions, that you personally hold yourself accountable. All of those attitudes are commendable; indeed, they should be the attitude any offender should take.
52You voluntarily engaged with the Men's Behaviour Change program, which community corrections will supervise and ensure that you complete. They will also refer you for what is called the Forensic Intervention Service for further assessment about other programs that you should undertake. They found you suitable for engaging in unpaid community work.
53I am mindful of the fact that family violence in our community is a problem that must be punished and deterred, but it must also be remedied, and such remedies must be established, embedded and ongoing.
54In light of those matters, I indicated a CCO would be the appropriate sentence, and I also will make orders to ensure that it is clear that your ongoing remedial work through Men's Behaviour Change Program and any other programs Corrections ask you to engage in, must be engaged in and, if you do so, you will receive a credit against your community work hours.
55I sentence you as follows:
In relation to Charges 1 and 2, so in relation to both charges, I impose an aggregate Community Correction Order. The term of that order will be for two years. It will require you to engage in 250 hours of community work. You are to be assessed and engage in treatment for alcohol misuse and for other programs related to further offending, and any time you spend in treatment or programs is to be counted against your community work hours.
56In accordance with s6AAA of the Sentencing Act, but for your guilty plea, I would have imposed a sentence of six months combined with a CCO.
57I note that, having pleaded guilty to the matters on the indictment, the summary charges on the Notice of Related Summary Offences are withdrawn and I strike them out.
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