Director of Public Prosecutions v McKay

[2018] VCC 475

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02416

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW MCKAY

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 April 2018
CASE MAY BE CITED AS:	DPP v McKay
MEDIUM NEUTRAL CITATION:	[2018] VCC 475

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	Ms K. van den Akker
For the Accused	Ms M. Brown

HIS HONOUR: 

1Matthew McKay, you have pleaded guilty to reckless cause serious injury, assault with a weapon and possess a controlled weapon without excuse, the two latter charges being related summary charges.

2The prosecution tendered a summary for the plea, which was exhibited and will retained on the court file.  For these purposes, briefly stated, the facts are these. 

3You, Simon Mudd and Shaun Peterson had known each other since you were children.  You and Mr Mudd have been best friends since then.

4On 27 August 2017 Mr Mudd hosted a small social gathering at his home.  The purpose of the gathering was to watch a boxing match on television.  Mr Mudd was home with his partner and their five-year-old daughter.

5At approximately 11 am, you arrived, having driven to the home in your car.  Over the next two hours Mr Mudd drank approximately eight cans of mid-strength beer and you drank approximately four or five glasses of Bourbon whiskey, finishing, on your own evidence, the bottle of Wild Turkey, which you described as the strong one, and which you shared with Mr Peterson in part, who had arrived there about 1 pm.

6After Mr Peterson arrived, he commenced drinking beer and Bourbon whiskey.  All of you continued drinking and watching television and enjoyed the late barbeque lunch before watching the main boxing match.  After the boxing match you all continued drinking in the backyard before you, Mr Mudd and Mr Peterson, decided to attend the nearby golf club to play golf.  The three of you took a single set of clubs and buggy and walked to the third hole.  You continued drinking and played the third hole onto the green.  Once on the green, you took the flag and damaged the green with it and also damaged the green with your feet.  Mr Mudd and Mr Peterson chastised you for damaging the green.

7You continued playing the adjacent second hole onto the green and, once again, you began damaging the green by stomping golf balls into the green. 
Mr Peterson approached you and chastised you again for damaging the green.  You and Mr Peterson engaged in a brief verbal argument before you left and walked back in the direction of Mr Mudd's home where you had parked your car.  You walked back to it and retrieved from it a knife. 

8Approximately five to ten minutes later you returned to the golf course holding a Smith and Wesson ‘Extreme-ops’ foldout knife.  You approached Mr Peterson, swore at him and lunged at him a couple of times, trying to stab him in the torso.  This is the summary offence (Charge 5). 

9He took a golf club and struck you on the right arm in an attempt to disarm you, but you were undeterred.  Mr Mudd intervened and pushed you.  You stabbed Mr Mudd in the left thigh, causing the wound to immediately gush blood. 
Mr Peterson called 000 and commenced first-aid upon Mr Mudd.  At the direction of Mr Peterson, you handed your shirt for use to stem the bleeding and headed to the road to flag down the ambulance.  When the paramedics and police arrived, you were arrested and transported by police to hospital for treatment due to your intoxication.

10Mr Mudd was brought to the Alfred Hospital by air ambulance and, on arrival, it was noted that he presented with a haemorrhaging stab wound on his upper lateral thigh causing a major arterial and venous injury.  A major transfusion protocol was activated and Mr Mudd received a total of seven units of packed red blood cells and four units of fresh frozen plasma.  He had lost almost three litres of blood and was only minutes away from death.  He was taken for emergency surgery to theatre wherein the following injuries were identified.  There was major blood loss; a transection of the left superficial femoral artery; a laceration of the left femoral vein; a laceration of the anterior lateral compartment of the muscles of the left thigh; and a transection of the left femoral and left saphenous nerve.  These injuries were severe and life-threatening, and a Victorian Institute of Forensic Medicine forensic physician noted that, "There is no doubt that without the first-aid applications and the hospital treatment,
Mr Mudd would be dead."  He was discharged home on 31 August 2017. 

11A search of your vehicle by police revealed another knife on the floor behind the passenger seat.  This is the related summary offence (Charge 9).

12A search by police of the golf course found the Smith & Wesson knife, which you had used on Mr Mudd, under a large rock a short distance away from the scene of the stabbing.

13On Sunday 28 August 2017 you participated in a recorded interview with police.  You said Mr Mudd was your best friend, having known him since you were five years old and you worked together.  You had known Mr Peterson for your whole life as well but had not seen him for a while.  You and Mr Mudd organised a get-together at Mudd's home to watch boxing on television, and in attendance was his girlfriend, Mr Peterson and yourself and you all drank a fair bit.  You, Mr Mudd and Mr Peterson went to play golf once the boxing was finished, and when the allegations were put to you as to the stabbing, you answered, "No comment", but you expressed some concerns for Mr Mudd's health.  You were charged and remanded in custody and you were later released on bail on
12 September.  Accordingly, you spent, at that point, 17 days in custody.

14You have now spent some forty-three days in custody.

15Victim impact statements have been provided by Simon Mudd and Shaun Peterson. 

16Simon Mudd wrote that the events of the day in question changed his life.  He has neither recovered physically nor psychologically.  He considered you his brother, in effect, and is bewildered and saddened that he could be so hurt and damaged by someone he has known all his life.  He was physically fit.  He can no longer walk or jog without pain.  He says every step hurts and his scar is a constant reminder.  He has permanent nerve displacement which entails permanent numbness and a constant pain down his leg.  He said it feels like being tasered ten times a day.  The injury had an effect on his family and capacity to earn and he suffered financially.  He is short-tempered and lost, and has lost trust in people from the experience.  He was moments from death and this has profoundly impacted his life.

17Mr Peterson wrote that his life also has been affected.  He feels guilty for what happened to Mr Mudd and the mental strain has been considerable.  He has changed careers as a result of this strain and this has affected him financially and psychologically.  He too, is often short-tempered and feels frustrated.  He often relives the events of the day.  He has become less trusting and sociable, has closed in onto a more secluded life and he is hyper vigilant in public.

18I take these victim impact statements into account.  As part of the synthesis of matters before the court, the impact on the victims must be a weighty consideration.  Physical and psychological trauma impacts upon victims and their families often profoundly and for long periods.  An offender even undergoing punishment may experience his own rehabilitation and progression to reclamation while those that he has traumatised deal with the impact of his conduct, often struggling with the rehabilitation and life transforming impact of that behaviour. 

19Part of the task of the court's work is to provide a measure of social rehabilitation, particularly of victims, by a proper recognition of the reality of the victims' trauma and giving such reality its proper weight in the disposition to endeavour to enhance the prospects for progress in the victims' own future. 

20I take into account your plea of guilty.  It is agreed that it was made at the earliest possible opportunity at the first committal mention in November 2017.  This plea has a utilitarian benefit to the community of having avoided a criminal trial and this has ensured that the victims did not have to give evidence.

21I accept this plea is accompanied by remorse, which you demonstrated by your demeanour in court in your evidence before me, and as expressed to various persons who have written on your behalf to the court, as well as to the other witnesses I heard from, one of whom was your father.  I accept you are remorseful in the sense of moral blame and shame, an acceptance of responsibility for what you have done, which has prompted your willingness to facilitate the course of justice and to make amends. 

22I accept that remorse of this kind does enhance prospects of rehabilitation and generally reduces the need for specific deterrence, but I will say something more about this second principle of specific deterrence in a moment.  However, generally speaking, an offender who pleads guilty out of a proper appreciation of the wrongfulness of his offence and its impact on the victims and desires to repair the damage done and clear his conscience is someone to whom some mercy in the form of a reduction in the appropriate sentence is likely to be received, and having stated that principle, I shall apply such reduction by way of a discount for the plea and separately in acceptance of the appropriateness of some leniency in your case because of your remorse.

23This leniency is also motivated by your endeavours after these offences to deal with your alcohol and drug use and with your mental health by way of a residential program and other steps taken by you to reform. 

24I heard evidence from Mr Cunningham, the executive director of Narcanon at East Warburton.  Residence at this facility is voluntary and the location is relatively isolated.  However, it is not a lockdown facility and residents can leave of their own accord.  However, there are some clear routines, time constraints and strict requirements expected to be observed with residents accompanied by staff to outside appointments and strict reporting to police if bailed residents, like you, were to leave the premises.

25There are withdrawal facilities to aid detoxification, and counselling is provided as well as some brief visiting rights.  Although in no sense could such residence be considered equivalent to incarceration, there clearly is an aspect of restrictive residency which will result in a lowering of both the head sentence and the non-parole period in recognition of the punitive impact of this regime which you undertook for some three to four months to completion of the program from September 2017.

26I accept that the impact of this program has been salutary and useful to your prospects of rehabilitation.  After your release, you have undertaken voluntary work at the Narconon facility to assist others experiencing the difficulties of addiction.  You attend about four days a week and perform tasks of laundry work, to cleaning, to meal preparation, to talking to residents as a role model for those undergoing treatment there.  Of course, such programs come to an end and the problems they deal with most often are left standing and complex. 

27I was told, and accept, that you have abstained from alcohol or recreational drugs since your admission to Narconon.  Whether such a program can resolve your use of such substances in the long term is a different story.  On your own evidence, you began using marijuana, ecstasy and speed at age 17, with methamphetamine use starting at age 24 or 25 up to your current age of 31, using almost every weekend.  Leading up to the offences you would drink every night and binge drink on weekends.  Your problematic gambling was also alluded to by your father.  You started ice use two years ago at weekends. 

28What can be said is that the residency program did not, or could not, fully deal with both your substance abuse and your mental health.  A GP has seen you on a number of occasions, and Dr Jerie, who wrote the court a brief report, has prescribed an antidepressant for severe anxiety and depression which you were experiencing after your completion at Narconon.  In a report dated
19 March 2018, she writes that you are motivated to find work, are taking your medication and are making some progress. 

29I also received two reports dated October and November 2017 from Narconon.  This program, I should note, is privately funded, and I heard evidence from your father that it costs some $30,000.  This commitment is to your family's credit and is a positive and protective value for your future, as indeed is the support and affection, which was demonstrated by their presence in court, of family members and friends.  The program includes a graduate plan of regular contact with you for a minimum of six months to provide ongoing support. 

30I also received a letter dated 20 March from Leanne Jackson, a psychologist.  You have undertaken four counselling sessions from December by use of cognitive behavioural therapy. 

31A report from Professor Ogden, an addiction medicine consultant, was received.  It was dated February 2018.  Professor Ogden is a very experienced expert in forensic medicine.  He highlights that you are at high risk of relapse, although there are some protective factors, and he discussed with you a number of steps which could be undertaken, both to avoid relapse and demonstrate abstinence, which are outlined in his report, which I have read and take into account, including attendance at his St Vincent's outpatients clinic and relapse prevention program.

32I accept that significant effort has been made to undertake rehabilitation efforts and this will need to be again taken up if you are to continue successfully on this path.  This aspect of the sentencing synthesis will be accorded significant weight in reduction of your sentence.  

33I am conscious that interrupting such a course of rehabilitation must be carefully considered, particularly where your prospects can be said to be reasonable.  However, the sentencing process is a response to serious offending and the process of the criminal justice system must consider other aspects such as those of deterrence, denunciation, punishment and community protection.

34In my view, the conduct leading to the commission of criminal offences and the consequent infliction of serious injury, recklessly in this case, is very serious.  Your drug and alcohol use cannot adequately excuse it.  It was a voluntary ingestion of such substances.  Its likely outcomes must have been clear to you even when dealing with friends with whom you had grown up.

35Although a list can be and was made as to what the offending was not, that is, reckless, not intentional, not inflicted in company, of brief duration, a number of aspects aggravate the objective seriousness of the offence.  Firstly, the use of the weapon to do violence increases its gravity.  The relationship between you and your victim similarly is an aggravating circumstance.  The nature of the injury was very serious and, though inflicted in one stab of the knife, the use of the knife was preceded by an assault with it to another victim immediately before the injury.  The conduct may have been without much planning, but it involved the retrieval of a weapon some distance away, returning to the scene in response to proper admonition about the foolish damage you were doing to the golf course. 

36The principle of general deterrence, particularly in relation to the use of the knife, must have primacy in this sentence.  The occurrence of knife-related assaults cause the community serious consternation and fear and the community rightly looks to the court to denounce and punish such conduct for its protection.  This principle must, in your case, be applied as well as specific deterrence. 

37Though your remorse is genuine, tending to diminish this principle, your criminal history is of relevance and is of concern.  Not only do you have a prior for possession of a dangerous article in a public place related to the production of such article in a confrontation with your brother-in-law in October 2016, dealt with in the Magistrates' Court in March 2017 via bond, but in December 2010 you were fined $4750 in Western Australia for three offences; one of property damage and two of assault occasioning bodily harm for offences committed in November 2009. 

38The circumstances of those offences make for very concerning reading.  You had been drinking with the victims and others, some play fighting developed into a serious scuffle, where you punched each other at the victim's residence.  At some point you went inside and returned with a large kitchen knife and began swinging it at the victim, who raised his hands in defence, the knife making contact with his hand, cutting skin and causing significant bleeding.  The victim's girlfriend attempted to break up the fight and moved closer as you lashed out with the knife and you struck her to her left inner thigh, causing a deep laceration in close proximity to the main artery of the leg, which bled profusely and required internal and external sutures.  You then smashed the glass to a window to the house to gain access to the residence, where you retrieved your bag, and fled the scene on foot and was later located at Port Hedland Hospital, where you were treated for some cuts and grazes.

39I have gone into the details, not because I punish you again for these matters or because they are peculiarly similar circumstances that aggravate this offence I am dealing with, but because this very nature must bring specific deterrence into consideration and affect any assessment of your prospects of rehabilitation.

40It is noteworthy that the victim of the Western Australian assault was also a friend, just like Mr Mudd, a neighbour, who had sought to help you in securing work in Western Australia and to assist you by doing so. 

41You are the middle of three children.  Your parents are together and are supportive of you.  Both your siblings are in stable, supportive and productive relationships.  There are no drugs or alcohol issues or any involvement with the criminal justice system. 

42You completed Year 10 and commenced employment at age 17 and you have a good work history as a landscaper, roof plumber and construction work, which is to your credit.

43Your sister and father, as well as your girlfriend, were present in court in demonstration of their support, which I take into account.

44Each of the matters raised make for a difficult and complex sentencing disposition. 

45I have considered the submissions made on your behalf which argued for a sentence encompassed by a community corrections order or in combination with some period of reclusion.  I am unable to agree with such a sentence. 

46The purposes of sentencing set out in the Sentencing Act cannot be achieved by the imposition of a community corrections order in your case.  The objective gravity of your offending and high moral culpability leaves this court with no sentencing option. 

47While I am appreciative and sympathetic to your efforts at rehabilitation, the applicable sentencing principles and considerations, even in the face of a merciful disposition, do not warrant moderation to enable the combination sentence or other community corrections orders, rather a significant amount of discount and moderation in the term of imprisonment to be imposed, in particular, a longer parole period which hopefully will be of benefit to you. 

48Would you please stand.

49On recklessly cause serious injury, you are convicted and sentenced to one year and six months' imprisonment. 

50On assault, you are convicted and sentenced to nine months' imprisonment.

51On possess a controlled weapon, you are convicted and sentenced to three months' imprisonment.

52I order that two months on Count 2 be served cumulatively on Count 1. 

53That is a total effective sentence of one year and eight months.

54I order a non-parole period of ten months. 

55I have signed disposal orders.

56I declare that you have served 43 days by way of pre-sentence detention and I have that number noted in the records of the court. 

57I note that you have family and friends in court.  I will remain on the Bench while they can speak to you before you are taken down.

58Finally, I indicate that but for your plea, I would have sentenced you to two years and three months' imprisonment with a non-parole period of fourteen months.

59HIS HONOUR:  Ms Brown, your client's family can approach him now before he's taken down.

60MS BROWN:  Thank you, Your Honour.  I won't approach my client, Your Honour, I'll see him in the cells afterwards, but the family are grateful of the opportunity.

61HIS HONOUR:  Yes, well, I understand the difficulty, and unfortunately there isn't the ability to pass anything or to even touch him at this point in time.  It's just the rules of the court ‑ ‑ ‑

62MS BROWN:  Yes

63HIS HONOUR:  ‑ ‑ ‑ by correctional authorities and security authorities.  So if that's been sufficient, then I will ask him to be taken down.

64MS BROWN:  Yes, thank you, Your Honour.

65HIS HONOUR:  Yes, thank you.  Yes, you may remove him, thanks.  You may remove Mr McKay.

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