Director of Public Prosecutions v McKenna

[2022] VCC 712

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-21-02491

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACOTA MCKENNA

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	30 March 2022 and 6 May 2022
DATE OF SENTENCE:	17 May 2022
CASE MAY BE CITED AS:	DPP v McKenna
MEDIUM NEUTRAL CITATION:	[2022] VCC

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Guilty plea – Serious driving offence – Theft – Dangerous driving – Handling stolen goods

Legislation Cited: S 23, S 74, S 81, S 88, S 317AE(1) of the Crimes Act – S 16(3A)(d), S 87P(b)(a), S 89(2)(b) Sentencing Act – S 59(1), S 64A Road Safety Act – S 61 Control of Weapons Act

Cases Cited:Bugmy v R [2013] HCA 37 – Langton v The Queen [2022] VSCA 79 – Worboyes [2020] VSCA 169 – Mills [1998] 4 VR 235 at 241 – DPP v Tokava [2006] VSCA 156 – Merrett & Ors [2007] VSCA 1 – DPP v Milson [2019] VSCA 55 – R v Verdins [2007] VSCA 102, [32]

Sentence:PSD of 591 days and a further 6 months’ imprisonment – 18 month Community Correction Order – Fine – Disqualification and cancellation of driver’s licence

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	MS M. ZAMMIT	MS K. WESTLAKE
For the Offender	MR J. MCGARVIE	MR T. EDWARDS

1HIS HONOUR:  Mr Jacota McKenna, who was born on the 29th day of June 1999, is aged 22 and was 21 at the time of these offences.  In this plea, Ms Zammit and Ms Farrell have appeared on behalf of the Director.  Mr Blake appeared on behalf of Mr McKenna, and Mr McGarvie appears today.  The original plea was held on 30 March 2022, a further plea on 6 May with the filing of further documents requested by the Court. 

2Mr McKenna is unemployed.  He is on remand currently at the MRC.  As I said today, PSD has been agreed at 591.  The plea was one of guilty to eight charges on the indictment and six summary charges.  Those pleas were taken through counsel, the indictment being No.L12353711. 

3Charges 1 to 4 on the indictment are offences against s23 of the Crimes Act, the maximum penalty of which is five years' imprisonment.  It involves two crimes of driving, and by such driving and other conduct, endangering persons.  The first of those offences, Charge 1, took place on 29 September 2020 at 5pm when, by way of the manner of approach to the other vehicle, the driving of his vehicle, by waving a machete and throwing a bottle, Mr McKenna endangered Benjamin and Joseph Burt. 

4The second offence, Charge 4 under this heading, took place the next day at 1.30am, that is 30 September, and relates generally to the danger created to users of the road in circumstances where along the Hamilton Road in Fyansford, when being followed by the police he travelled on the wrong side of the road with lights off.  In those circumstances, being 1.30am, the police took the view that it was too dangerous to continue the chase.

5Charge 3 occurred on 30 September at 12.30 am and involves a charge, indeed the most serious charge in these circumstances, of recklessly exposing two police officers to the risk of safety at Bell Park, an offence under s317AE(1) of the Crimes Act. Having been observed, the car driven by Mr McKenna took off from the police, turned right against a red light, swerved on the road at a speed of some 80 to 90 kilometres per hour to stop the police officers from getting past him, forcing the police car to take evasive action, and then blocking the police vehicle as it attempted to overtake him, further, turning and having his lights off while travelling at 100 kilometres per hour. The maximum penalty for this crime is 10 years imprisonment pursuant to s317AE(1). Cumulation applies, pursuant to the provisions of s16(3A)(d) of the Sentencing Act to any gaol sentence imposed on this charge; that is, the sentence imposed in this matter must be cumulated upon other sentences, unless there is some other direction by the Court. It is also deemed a serious driving offence, pursuant to s87P(b)(a) of the Sentencing Act, as a result therefore, pursuant to s89(2)(b), Mr McKenna's licence must be cancelled and he must be disqualified from applying for another licence for a period of 24 months as a minimum.

6At the time of the offending in Charge 3, he was driving a stolen car. Pursuant to the provisions of s74 of the Crimes Act he is charged, Charge 2, therefore, with theft of a car.  This car was apparently stolen outside the owner's house at 12.15am.  The maximum penalty prescribed for such offence is one of 10 years imprisonment. 

7In addition he is charged with summary Charge 13, fail to stop upon police direction, which is an offence under s64A of the Road Safety Act.  The maximum penalty that can be prescribed for a first offence is six months' imprisonment.  Summary Charge 13 occurred at 3 am on 30 September, when police used stop sticks to try and stop Mr McKenna.  However, he swerved dangerously around those sticks.  Again summary Charge 20 relates to a similar charge.  It occurred at 4 am in Corio, again when he dangerously avoided stop sticks; that is, failing to stop on direction.

8The next offence occurred on 2 October 2020, which involves, firstly, Charge 5, a theft of a purse from a car, which contained credit cards. There had been apparently, in addition on 3 October, an aggravated burglary, when a white Suzuki was stolen. At 8.30 that night the police went to Mr McKenna's home upon information. The stolen car was outside his premises. He drove off in the Suzuki. Again the police chased him and tried to stop him; they had their lights on. There was another car stolen at the time; that also drove off. Again at some stage, this is 8.30 pm, lights were turned off, the cars were driven on the wrong side of the road and there was a failure to give way. As a result of this he is charged with summary Charge 11, fail to stop at the request of police, an offence under s59(1) of the Road Safety Act for which the penalty is 20 penalty units and/or for a subsequent offence four months' imprisonment.

9Emanating thereafter were two dishonesty charges. Charge 6 occurred at 9pm on 3 October when the Suzuki pulled into a petrol station, it is charged under s74 for the theft of petrol valued at $11.40. Charge 7 occurred at 5am the same night when goods were paid for by a credit card at a garage, one costing 49.75, the other 43.75. The charge is one of deception under s81, for which the maximum penalty is 10 years.

10In addition, there is a summary Charge 12, failing to stop on direction or on request.  This is the same charge as Charge 11.  This occurred at 9.30 on 2 October on the Geelong Ring Road.  He again attempted to go through stop sticks.  They deflated the tyres of the car.  He continued to go on and was subsequently captured. 

11Charge 8 emanates out of what was found in his possession once he was arrested, a charge of handling stolen goods. That related to an NAB credit card, and is an offence against s88 of the Crimes Act for which the maximum penalty prescribed is 15 years' gaol. In addition, he was found with the machete which has earlier been mentioned. That makes up summary Charge 16, possession of a controlled weapon, which is an offence under s61 of the Control of Weapons Act, for which the maximum penalty is 120 penalty units and/or one year's gaol. 

12In addition, there is a summary Charge 28, which goes back to 27 September 2020, and that relates to dangerous driving on Cox Road in Corio, and related to persons Morley and Opacak, when the machete was also utilised.  The maximum penalty prescribed for dangerous driving is 240 penalty units and/or two years' gaol.

13Following that recitation, and indeed in the plea, I summarised the totality of the driving executed by Mr McKenna as a disaster waiting to happen.  How no one was killed, given his driving, is amazing.  I indeed described him at the time as an idiot, and I don't resile from that.  At no stage did Mr Blake disagree with such descriptions, nor did he step away from the seriousness of the offences in this driving spree undertaken by Mr McKenna. 

14The prosecution at all times have submitted that the totality of these offences is such that the only appropriate sentence is one of imprisonment and parole, especially in the circumstances where Mr McKenna admitted to Dr Owen, see Exhibit 3 at paragraph 61, that he was affected by drugs at the time of the driving.  Such a position was maintained, even with the additional material, at the further plea.  However, it was as a result of those materials indicated to the Court that if a Community Correction order was passed by way of combination with imprisonment that would be in the range, albeit that the prosecution did not desire to submit as to the period of imprisonment, leaving that to the Court.

15Mr McKenna comes before the Court with serious priors, mostly in the Children's Court.  It is rare that I have seen such priors, 25 pages, particularly in the Children's Court.  Those priors go back to September 2017, charges of driving in a manner dangerous; June 15, driving while being pursued by police.  They involve numerous assaults, assaults police, possessions of controlled weapons, and indeed they go back, as I have said, to March 2013 when he was 13,  he has committed almost every offence you would want to mention.  His adult sentences in the Magistrates' Court began in September 17, the most serious of those was possess a prohibited weapon on 11 August 20, and theft of vehicles.  He was given 75 days' imprisonment with a Community Correction order of 15 months.  That date obviously shows that he had just started that CCO when this driving spree occurred. 

16To say the least, this is a complex sentence.  That comes about from an analysis of his history, upbringing and an assessment of the principles detailed in the case of Bugmy v R [2013] HCA 37. Those principles are clearly relevant. In particular, if I refer to the first report of Mr Owen, Exhibit 3, where he details the history of Mr McKenna from paragraphs 11 through to 33; his substance history from paragraphs 38 through to 45, in particular at 47, the fact of him having a displaced childhood and being under the care of the Department of Human Services and the fact that he had limited schooling, leaving school at approximately Grade 5. Fortunately, at paragraph 64, it would appear that he has had some comprehension, finally one would hope, as to his criminality. At paragraph 64 Dr Owen said, 'Asked to comment on his actions now, he said it was stupid, uncalled for. Asked about the consequences of his actions, he said, "I could've killed somebody. Honestly that hurts". He said he probably scared a lot of people'. I think there is no doubt about that.

17Dr Owen made a diagnosis, at paragraphs 87 and 88: 

'It seems clear that the diagnosis of borderline personality disorder is established, characterised by a cluster of maladaptive personality traits which cause problems in functioning, impulsivity, difficulties with managing anger, and a pattern of intense and unstable relationships, recurrent suicidal behaviour and marked reactivity of mood'.

18At paragraph 88 Dr Owen diagnosed that Mr McKenna had a cannabis use disorder.  Dr Owen was of the view there was not a bipolar disorder and that was confirmed in his later report.

19I have no doubt that this Court is dealing with a young man, the product of a depressed and traumatic childhood, albeit, as Dr Owen says, that he suffers from borderline personality disorder, which explains his impulsive behaviour and dysregulation and intense anger.  I consider that such background and history is explanatory of his criminality.  I do not determine that there is any causality or any connection, as set out in Bugmy.  That does not mean I do not take into account his history.  Clearly I do. 

20I accept that the totality of his mental condition and background would impact upon his capacity to exercise appropriate judgment.  However, I do not find upon close analysis such enlivens principles 1, 3 or 4 of R v Verdins [2007] VSCA 102, [32].  I was assisted in such by the analysis undertaken by the Court of Appeal most recently in Langton v The Queen [2022] VSCA 79, [32] and [36]. I do not find a realistic link or causal connection established between his mental condition and the criminality in these matters. However, clearly, given his condition, principle 2 of Verdins is of importance, as are principles 5 and 6.

21I accept Mr Blake's submissions as to the plea of guilty being a valuable plea and it’s utilitarian benefit.  I also accept the proposition as set out in the report to the psychologist that Mr McKenna is accepting of responsibility, not only in such interviews, that such assists justice and in the particular circumstances, both by way of pre-sentence detention and ongoing gaol to be served, the principles of Worboyes [2020] VSCA 169 apply, being that pleas made at this time need to precipitate an amelioration of sentence.

22I accept that Mr McKenna has undergone additional difficult conditions in prison, both by way of pre-sentence service and future service at gaol.  In particular, I take into account the proposition put by Mr Blake that given his current age of 22, he is to be sentenced as still a young man.  In such circumstances rehabilitation is most important and the principles set out in Mills [1998] 4 VR 235 at 241, [37] apply. In that regard there is some positive material given to the Court; that is Exhibit 7 of the six urine tests undertaken in the period of January 21 to April 22 being negative, and Exhibit 6 being the positive manner in which he has undertaken his period in gaol and the courses undertaken.

23Insofar as the principle of rehabilitation, I refer to the words of the current President in DPP v Tokava [2006] VSCA 156, at [21], where the President said:

A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of a serious offence, if in the long term the community interest will be best served by that course.

24I also note His Honour's comments in Merrett & Ors [2007] VSCA 1, in [49], where His Honour said:

The Court looks to the future as well as the past.  There is great benefit to the community at large, as well as to individuals themselves and their immediate families, if future criminal activity can be avoided.  It is important that this Court, by its own sentencing decisions, recognise and reward efforts at rehabilitation, just as we should support trial judges that do so.  It is important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders.  The preoccupation with retribution which characterises much of the public comment on sentencing is understandable, but it focuses on only one part of what the sentencing court does.

25I also refer to the principles set out in DPP v Milson [2019] VSCA 55, and in particular the references therein to the importance of rehabilitation and the prospects of same, [71].

26Of course, Mr McKenna’s prospects, given the history, are a matter of some conjecture.  However, it seems to me that a Court, given the age and background of Mr McKenna, and the principles set out in Bugmy, is such that Mr McKenna needs to be given a further opportunity.  I should say, however, and make it very clear to Mr McKenna, that if he doesn't take the opportunity I give him here, during the period of the CCO, he can clearly expect significant additional gaol.

27Given the similarity of all of these offences, I intend to impose an aggregate sentence. That aggregate sentence I impose in regard to Charge 3 and all of the other charges, 1, 2, 4, 5, 6, 7 and 8, but I pronounce it in regard to all charges and it is a period of imprisonment of six months plus 591 days. The effect of that will be that there will be a further six months to be served by Mr McKenna before he begins a Community Correction order for 18 months. In the circumstances I FIND there is no need to attend further to the provisions of s16(3D) of the Sentencing Act.  Given the provisions of the Crimes Ac,t as I have detailed, his licence will be cancelled and he will be disqualified from obtaining a further licence for two years, that order will be made pursuant to the Charge 3.  I do not intend to impose any conditions as to him being relicensed. 

28As to the summary offences.  Charge 13, he will be sentenced to imprisonment of two months.  Charge 20, a period of imprisonment of two months.  Charge 11, five penalty units, the appropriate penalty unit being at the time $165.22.  Charge 12, five penalty units, the appropriate penalty unit being as I have detailed.  Charge 28, two months imprisonment, and Charge 16, two months imprisonment.  These sentences will be served concurrently with the six months to be served under the sentence imposed in the indictment.  I have signed a disposal order. 

29I should say that in regard to the prosecution's submission, the prosecution maintained the position that given the severity of these sentences the only appropriate sentence was a period of imprisonment and parole.  I accept that; however, in the totality of the circumstances I reject that course for the reasons which I have stated. 

30So the effect, Mr McGarvie, is your client will need to serve a further six months and then be subject to a Community Correction order for 18 months thereafter, and the terms of those essentially will involve treatment provisions.

31MR McGARVIE:  As the Court pleases.

32HIS HONOUR:  Mr McKenna, I hope you can hear but, I'll ask Mr McGarvie if he can to make it clear to you when he gets the opportunity to talk to you, that this behaviour can't continue.  You have got to change your way, as you have already indicated.  And I have taken the view that you are genuine about that. However you come back before me, having breached any term of the CCO, and a far more severe sentence will be in front of you. 

33As to provision 6AAA, given the complexity of this sentence, all I can say is, in answer to Parliament's request, that judges indicate what would have been the alternative had Mr McKenna not pleaded guilty, all I can say is I would not have given him a combined sentence. 

34Any questions from either counsel?

35MR McGARVIE:  No, Your Honour.

36HIS HONOUR:  Mr McGarvie, given your client's position, Ms Westlake, you will send the bond will you - sorry, the Community Correction order to?

37MS WESTLAKE:  I will send it to the prison and to Mr McGarvie.

38HIS HONOUR:  And to Mr McGarvie, on the basis that it will be signed then and sent back.

39MS WESTLAKE:  Yes.

40MR McGARVIE:  As the Court pleases.

41HIS HONOUR:  Thank you.

42MS WESTLAKE:  Thank you, Your Honour.

43HIS HONOUR:  Thank you.  Yes, thank you.

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