Director of Public Prosecutions v McKenzie
[2024] VCC 874
•11 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00360
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ERIC McKENZIE |
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JUDGE: | HER HONOUR JUDGE HARPER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 June 2024 | |
DATE OF SENTENCE: | 11 June 2024 | |
CASE MAY BE CITED AS: | DPP v McKenzie | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 874 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Theft; armed robbery
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: 166 days imprisonment and 12 month CCO
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Wilson | Ms. A. Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr M. McLellan | Emma Turnbull Lawyers |
HER HONOUR:
1Eric McKenzie, you have pleaded guilty to one charge of theft and one charge of armed robbery.
2The maximum penalty for theft is 10 years' imprisonment. For armed robbery, the maximum penalty is 25 years' imprisonment.
CIRCUMSTANCES OF THE OFFENDING
3The circumstances of your offending were outlined in the Summary of Prosecution Opening for Plea dated 14 May 2024. I will summarise those facts here.
4On 28 December 2023 you rode your mountain bike to the Mackie Road Supermarket in Bentleigh East, some 2 kilometres from your home.
5You entered the supermarket, walked to the shelving area to the left of the service counter and grabbed three bottles of Absolut vodka, placing them inside a bag. You then left the supermarket, having made no attempt to pay for the items. This forms the basis of the theft charge.
6The following afternoon, 29 December 2023, you again rode your mountain bike to the Mackie Road Supermarket. Ms Pheobe Tjipto was working behind the service counter.
7You grabbed Ms Tjipto around her body and held a 20-centimetre-long knife against her abdomen and neck, pushing her up against the rear wall. Ms Tjipto opened the cash register drawer and you took $700. A witness entered the supermarket and you screamed at him to leave. He rang Triple 0.
8Another witness arrived and from the door of the supermarket saw you holding the knife to Ms Tjipto's stomach. That witness filmed you on her phone.
9After taking the $700 from the register, you took a bottle of Absolut vodka and left the supermarket. The entire incident was captured on CCTV.
10Police attended the scene. You were later recognised from images matching the CCTV.
11At 3.15 pm you were arrested at your home. Police located several Absolut vodka bottles, a bag and a knife at your address.
12You were interviewed by police and stated that you were withdrawing from opiates and had not had your methadone that day.
OFFENCE GRAVITY
13Both parties agree that while Charge 1 was opportunistic, your offending in Charge 2 falls at the mid-range of seriousness. You committed an armed robbery on a vulnerable, soft target, in broad daylight, in front of witnesses. It was brazen offending.
14You menaced your victim with a knife, leaving her shaking, crying and fearful. It would have been a very frightening experience. Fortunately, there weas no substantial injury sustained by the victim and I note there is no Victim Impact Statement.
PLEA OF GUILTY & REMORSE
15The parties agree that your plea of guilty was entered at the earliest opportunity. This has significant utilitarian benefit. You have saved the Court and the community the time and expense of running a trial and you have spared the victim the ordeal of giving evidence. In those circumstances, you have facilitated the administration of justice and you are entitled to a benefit for that.
16By your plea of guilty, you have demonstrated an acceptance of responsibility for your offending. You have expressed remorse to both of your parents who provided character references on your behalf. I take this remorse into consideration.
PERSONAL CIRCUMSTANCES
17I turn now to your personal circumstances.
18You are now 29 years of age, having been born in October 1994. You were brought up by your parents, who separated five years ago. You have a maternal half-sister and a brother.
19You attended McKinnon High School but withdrew during Year 9 when your then girlfriend, Jasmine, fell pregnant. Your daughter is now 14.
20
You have worked as a gardener since the age of 16 but have not been employed for the last two years due to your drug and alcohol abuse. You have at times worked for small businesses, including your father’s business, and have been
self-employed.
21In 2012 you commenced a relationship with a woman called Jessica. You have routinely consumed alcohol since the age of 16. From 18 you smoked methylamphetamine most weekends. Several years ago, you developed a heroin habit and you have been prescribed methadone for the last two years.
22In 2022 your best friend, Tom Johanson, died of an overdose. You descended into alcoholism and rampant heroin use and Jessica left you.
23Your alcohol use led to a hospital admission for liver problems. You were admitted into Odyssey House for four months until November 2023 when you left to be with a partner you met in the program. That woman and her four children moved into your home, you both abused ice and GHB, the children were removed and she left you in late December 2023.
24The offending occurred shortly thereafter, and you were remanded in custody.
25You have no diagnosed mental illness.
26Your father lives in Highett with your brother. Your mother also lives in Highett with your daughter. Your parents remain supportive of you. They each provided a character reference and were in court to support you.
27Upon your release you will live with your father and brother. You hope to re‑establish contact with your daughter and to resume employment.
SENTENCING PRINCIPLES AND FACTORS
28Mr McKenzie this was nasty offending. You chose a soft target, and you held a knife to her abdomen and throat for a small sum of money and a bottle of vodka, no doubt in furtherance of your drug and alcohol addictions.
29You have one prior appearance for possess imitation firearm in 2018 which is not directly relevant to this offending. This is therefore your first time in custody.
30I nevertheless consider specific deterrence to have some relevance to you. The sentence I impose must make it clear to you that there are real consequences of such appalling behaviour.
31General deterrence is also of particular importance. Other members of the community must be deterred from committing such offences and they must see that armed robbery in particular, will very likely result in a term of immediate imprisonment.
32Community protection is another relevant consideration, given the nature of your offending and the involvement of a soft target. I also take denunciation and just punishment into account.
33You come from a good family and despite what you have put your parents through, they remain supportive of you. Your family support is a significant protective factor in your rehabilitation.
34While you have been assisted by Windana and Odyssey House at times in the past, those interventions have not been successful in the long term. I nevertheless consider that you have reasonable prospects of rehabilitation if you engage with the supports on offer and do not resume drug use.
35Both parties submitted that a combination sentence of imprisonment with a community corrections order would be within range.
36You have not had the benefit of court mandated rehabilitation in the past and I had you assessed for an order. The assessor found that you demonstrated a level of understand as to the precursors of the offending behaviour and were able to reflect on your behaviour. You are assessed as a medium risk of general re-offending.
37You also underwent a MHARS mental health assessment which found that you could benefit from learning and practising psychological skills and strategies.
38You have now served over five months in custody. I am prepared to release you on a community corrections order in the hope that you will avail yourself of the supports on offer. Would you please stand.
DISPOSITION
39On Charge 1, theft and Charge 2, armed robbery, you are sentenced to an aggregate term of 166 days' imprisonment in combination with a community corrections order, with conviction.
40That order will last for 12 months and have the following conditions:
(a) You are to abide by all core conditions;
(b) You are to report to Moorabbin Community Corrections within two working days of today;
(c) You are to be subject to supervision;
(d) You are to attend for assessment and treatment for mental health;
(e) You are to attend for assessment and treatment for drug use;
(f) You are to attend for assessment and treatment for alcohol use; and
(g) You are to engage in programs to reduce reoffending.
41Do you agree to abide by those conditions?
42OFFENDER: Yes, Your Honour.
43HER HONOUR: I will have the order prepared now. Do you want to approach the dock, Mr McLellan?
44MR McLELLAN: Yes, Your Honour.
45HER HONOUR: You can approach the dock.
46I declare that you have served 166 days by way of pre-sentence detention pursuant to s18 of the Sentencing Act 1991.
47Pursuant to s.6AAA of the Sentencing Act 1991, I direct that had you not pleaded guilty, the sentence I would have imposed would have been 20 months' imprisonment with a non-parole period of 12 months.
48I grant the disposal and compensation orders sought by the prosecution.
49Is there anything further from either party?
50MR WILSON: Nothing further, Your Honour, thank you.
51MR McLELLAN: Nothing from me, Your Honour. As Your Honour pleases.
52HER HONOUR: Thank you. Mr McKenzie, you have served the pre-sentence detention. You will be taken into custody and released once all the checks are made today, because you have served the period in custody already. Do you understand? And then you will be released from downstairs, as I understand it. Your lawyer will no doubt assist you with that.
53I thank both counsel for their assistance.
54COUNSEL: As Your Honour pleases.
55HER HONOUR: We will adjourn the court.
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