Director of Public Prosecutions v McKay

[2022] VCC 911

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

  Revised

Not Restricted

Suitable for Publication

CR-20-01723

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL MCKAY

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	14 June 2022
DATE OF SENTENCE:	14 June 2022
CASE MAY BE CITED AS:	DPP v McKay
MEDIUM NEUTRAL CITATION:	[2022] VCC 911

REASONS FOR SENTENCE

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Subject:   CRIMINAL LAW – Sentencing.

Catchwords:             Plea of guilty – Armed robbery – Relevant prior criminal history – Delay - Relatively young offender – Parity - COVID-19 pandemic.

Legislation Cited:     Crimes Act 1958 s 75A; Sentencing Act 1991 ss 6AAA, 18.

Cases Cited:            Worboyes v The Queen [2021] VSCA 169.

Sentence:Imprisonment for a period of 2 years and 6 months with a non-parole period of 1 year and 4 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Banasik	Office of Public Prosecutions
For the Accused	Mr D. Langton	Michael Gleeson & Associates

HIS HONOUR:

Introduction

1Daniel McKay, you have pleaded guilty on Indictment C2013389.1 to one charge of armed robbery contrary to s75A of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment (Charge 1).

2You have also admitted your Criminal Record.

Circumstances of the offending

3A prosecution opening was tendered on the plea and may be summarised as follows:

4At the time of this offending you were 20 years old.  Your co-accused, Jayden Shaw, was 25 years old.

5At 6:15 am on 31 January 2020, 18 year old Tarkyn Balzan and 15 year old Beau Farquhar were sitting on the ground at a cricket pavilion within the Doug Dean Recreation Reserve, listening to music.

6A gold Nissan with you, Mr Shaw and an associate, Carl Murray inside, drove into the nearby carpark of the Reserve.  Mr Shaw was the driver, you were the front passenger and Carl Murray was the back seat passenger.

7The three of you called out, "What are you boys doing?" and "You boys got any juice?"  Mr Farquhar went over and spoke with you.  About 10 minutes later,
Mr Balzan also approached the car and joined the conversation.

8Ms Shaw said to Mr Balzan, "Do you talk to cops?'' and asked Mr Balzan his age.

9Mr Balzan told Ms Shaw he was 18 years old, and you said, "Old enough to get your phone taken off ya".

10Mr Balzan refused to hand over his phone, and you said, "Give us your phone or I'll shoot you".  Initially Mr Balzan did not take this seriously.

11You then removed from a bag a sawn-off shotgun described by Mr Balzan as about the length of a ruler and pointed it towards Mr Balzan's head.  Mr Balzan believed he was going to die.

12Mr Balzan handed you his cigarettes and lighter in an attempt to appease you. You then said, "Give me your phone".  Mr Balzan handed over his blue Oppo AX5 mobile phone and provided his passcode when asked.

13You asked Mr Farquhar for his phone, but Mr Farquhar denied having one.  You demanded that Mr Balzan tackle Mr Farquhar to get his phone.  The gun was still pointed at Mr Balzan at this time.  Mr Balzan heard Mr Murray say, "Just shoot them, get it done with".

14Mr Balzan and Mr Farquhar ran off toward Greenhalghs Road before seeking refuge.  You, Mr Shaw and your associate Mr Murray drove away from the Reserve.  Mr Farquhar and Mr Balzan contacted 000 on Mr Farquhar's mobile phone.

15CCTV footage was obtained from the vicinity of the offence.  A light coloured gold Nissan Sedan was shown near the Doug Dean Reserve shortly before the incident.

16CCTV footage subsequently obtained from your residence at 3/2 Ida St,
Black Hill shows the gold Nissan WFA 949 return to the premises at 9.21 am that morning.  Both you and Mr Shaw are shown attending the front door at 9.24 am.  Police carried out surveillance on the property from 10.11 am.  You both left the property later that morning and two unknown males later attended and drove away in the vehicle.

17At approximately 2:15 pm on 3 February 2020, you were arrested in Delacombe.

18On 5 February 2020, search warrants were executed at 14 Cromwell Street, Wendouree.  Motor vehicle WFA 949, the gold Nissan, was located behind closed gates.  Both registration plates had been removed from the vehicle.  It was seized and taken to Ballarat Police Station.

19Several latent fingerprints belonging to you were located on the exterior and interior of the Nissan including on the driver's seatbelt buckle.

20Mr Balzan later identified you and Mr Shaw in photo boards.

21You were arrested in Waikerie, South Australia on 28 February 2020 and conveyed to Mildura Police station on 3 March 2020 where you were interviewed. You made no comment in relation to the allegations.

22Mr Shaw was interviewed on 3 February 2020.  Mr Shaw denied involvement in the armed robbery.  He said he had borrowed his brother's gold Nissan but that at the time of the armed robbery it had been stolen.  He claimed he had stayed at an address in Mount Pleasant on the night of Thursday 30 January 2020 before returning to Ida Street the following morning.

Nature and gravity of the offending

23Armed robbery is an inherently serious offence.  The maximum penalty of
25 years imprisonment which Parliament has prescribed, is a demonstration of the seriousness of the crime.  In this instance, you, while in company with
Mr Shaw and a third co-offender produced a sawn-off shot gun and pointed it to the head of one of the victims.  While pointing the gun Mr Shaw made the demand for the victims' phones.  Understandably, Mr Balzan was in fear for his life.  Further, the third co-offender Carl Murray also made a serious threat while the gun was still being pointed at the victim.  While this threat is not attributable to you or Mr Shaw, it forms part of the narrative and was made after you had produced the sawn off shotgun.

24At the time of the offending, Mr Balzan was 18 years of age and Mr Farquhar was 15 years of age.  They were simply sitting and listening to music when you caught their attention and ultimately committed the offence.  Undoubtedly, once the firearm was produced, this would have been a frightening experience for
Mr Balzan as the victim of the armed robbery, and for Mr Farquhar observing the weapon and hearing the threats.  In my view in the circumstances this is a relatively serious example of this type of street armed robbery.

Personal circumstances

25You are 23 years of age and were 20 years of age at the time of the offending.

26You are the third of four children with two older sisters and a younger brother. Your parents separated when you were three or four years of age and you lived with your mother in Ballarat.  Your mother currently lives in South Australia as do your other siblings.

27Following your parents' separation, your father remained in the Ballarat area, has re-partnered and has three further daughters.

28You completed Year 11 at Phoenix Community College in Sebastopol and left home around this time.  You have lived in various places since, including with friends and at times, your grandmother.

29You commenced a plumbing apprenticeship and had completed about
18 months of the apprenticeship before you were remanded for this offending.  You have indicated that you wish to resume the apprenticeship once this matter has been resolved.  Your previous employer speaks highly of your work ethic, and it is clear you have the ability to be a productive member of the community.

30You have battled with a drug problem which is evident in your criminal history and it is clear that drugs were part of this offending in some form.

31You currently you live with your partner of two years.  Your first child, a daughter, was born in April 2022.  Self evidently you now have new responsibilities as a first time father, which you are committed to.

32Your partner, Alysha Beckerleg gave evidence and confirmed that you are committed to the relationship and to being a hands-on father to your new daughter.

33You have relevant but limited criminal history that commenced in 2018 and includes drug and dishonesty offending.

34Since this offending, and the sentence indication hearing in April this year, you have been charged with further offending involving a number of burglaries and driving matters.  Those matters are listed for committal mention.

35You were granted bail on 4 December 2020 on this matter and as noted, you appeared at the sentencing indication hearing on 1 April 2022.  However, on the plea date, 6 May 2022, you failed to appear and a warrant was issued.  You were then remanded on the other matters.

Sentencing considerations

36First, I take into account your plea of guilty.  This matter was initially listed for trial in November 2021 and was not reached.  Pretrial argument was conducted before a different judge in May 2021.  The matter then came before me at Ballarat for trial and on 1 April 2022, a sentence indication hearing was conducted.  Following that hearing, you and Mr Shaw entered pleas of guilty to one charge of armed robbery.  While your plea cannot be considered an early plea, it nonetheless carries weight.  Your plea of guilty has saved the court considerable time and expense and has saved the victims from having to give evidence at trial.

37The plea carries additional weight which must be reflected in a further amelioration in sentence, as it has been entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[1]

[1] Worboyes v The Queen [2021] VSCA 169 at [39].

38Further, the time you served on remand in 2020 was particularly onerous due to conditions in prisons arising from the COVID-19 pandemic.  Prisoners were subjected to lockdowns, quarantine periods and restrictions on personal visits, education and rehabilitative programs.  While the circumstances have improved, the virus is still circulating, and some restrictions remain in place within the prison community.  I take these matters into account in relation to the time you have already served and the additional time you will be required to serve.

39I take into account the fact that you are still a relatively young offender being
23 years of age now and 20 at the time of the offending.  However, the serious nature of the offending in this instance lessens to a degree the weight to be given to your youth in order to give way to other sentencing considerations such as deterrence and denunciation of your conduct.

40Turning to your prospects of rehabilitation.  While you have a relevant criminal history and you have a number of subsequent matters to resolve, your circumstances have recently changed and you have a young child and a stable relationship, both of which you are committed to.  In the circumstances your prospects of rehabilitation are uncertain, however, you now have motivation to change.

41Undoubtedly, general deterrence must feature prominently in the sentencing calculus.  A message must be conveyed that this type of offending targeting young people on the street must be deterred.  Given your criminal history and past drug use, specific deterrence must also carry weight.

42As was discussed at the sentencing indication hearing, applying the principles of parity, when formulating a head sentence in this matter in all the circumstances I came to the view that the same sentence should be given to you and Mr Shaw. On the one hand you produced the weapon and thus took a more active role in the armed robbery.  On the other hand, Mr Shaw is older than you and had a more extensive criminal history.

43However, despite your criminal history and the seriousness of the offending, in my view a longer than usual period of parole will offer you a level of supervision in the community and enable you to continue your rehabilitation, once granted parole.

Sentence

44Mr McKay would you please stand.

45Daniel McKay, on Charge 1, armed robbery, you are convicted and sentenced to 2 years and 6 months imprisonment.  I direct that you serve 1 year and 4 months before becoming eligible for parole.

46Pursuant to s18 of the Sentencing Act 1991, I declare that 296 days be reckoned as the period of imprisonment already served under the sentence I have imposed.  That does not include today.

47Pursuant to s6AAA of the Sentencing Act1991, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 4 years with a
non-parole period of 3 years.

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