Director of Public Prosecutions v McKenzie
[2023] VCC 378
•9 March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-22-01773
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ASHLEY McKENZIE |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 March 2023 | |
DATE OF SENTENCE: | 9 March 2023 | |
CASE MAY BE CITED AS: | DPP v McKenzie | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 378 | |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Attempted armed robbery - causing injury intentionally
Legislation Cited:
Cases Cited:Marrahv the Queen [2014] VSCA 119, R v Rookledge [2004] VSC 300
Sentence:4 years and 3 months' imprisonment, 2 years and 4 months non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Dickens | Office of Public Prosecutions |
| For the Accused | Mr D. Rofe | Victoria Legal Aid |
HIS HONOUR:
1 Ashley McKenzie, you have pleaded guilty to an offence of attempted armed robbery, for which the maximum penalty is imprisonment for 20 years, and to an offence of causing injury intentionally, for which the maximum penalty is imprisonment for 10 years.
2 You have admitted an extensive criminal record going back to December 2002, the most recent offence being an appearance at the Ringwood Magistrates' Court on 6 September 2019 for obtaining property by deception and, prior to that, on 28 June 2019 at the Melbourne County Court for two offences of armed robbery, for which you were sentenced to a total effective sentence of imprisonment for three years with a non‑parole period of 18 months.
3 The prosecution has tendered and relied upon a Summary of Prosecution Opening dated 2 February 2023 which was read to the court. I am not going to read it all out again, but I will read parts of it because it does seem to me that it is necessary to put on record the nature of the offending conduct to give context to what I am going to say in my sentencing remarks.
4 Your victim in the attempted armed robbery and the offence of intentionally cause injury was a 57-year-old self-employed woman who was working alone at her TSG Tobacco Station store on the corner of Flinders Street and Queen Street in Melbourne. You were 36 years of age when the offending occurred. You are now 37 years of age. The offending occurred on Saturday 26 February 2022, just over a year ago.
5 You were seen during the course of the late afternoon on that day leaving your short‑term accommodation in Parkville. You were seen in the CBD shortly before 7 pm in the vicinity of the Flinders Street junction with Queen Street. You were in the vicinity of those premises for some minutes until you entered the premises at seven minutes past 7 pm.
6 What took place was captured on CCTV footage. I received Exhibit B, which was the DVD showing the CCTV footage of what took place. Not all of it was captured clearly on the footage, but enough of it was visible to paint a picture of your conduct towards your victim.
7 At the time you entered the store your victim was sitting alone behind the service counter at the rear of the store. You were holding a large silver-coloured cooking knife, approximately 20 centimetres in length, in your right hand against your leg. You walked up to your victim, leaned over the service counter, produced the knife and pointed it directly at her. The handle of the knife was wrapped in a black sock. Whilst you were pointing your knife at your victim you shouted, 'I need money. I want money'.
8 You walked behind the service counter. Your victim attempted to stop you by picking up a nearby wooden stool and throwing it at you. You pushed the stool away and continued your advance upon her. You grabbed hold of your victim with your left hand and held the knife to her neck with your right hand. She resisted and began screaming. As she began to scream you began to prod and stab her with the knife in the area of her torso. Each time she would scream, or make a noise for help, you would press the knife blade into her, causing substantial pain and fear.
9 To try and defend herself, your victim picked up a nearby wooden baseball bat. You tackled your victim to the floor behind the service counter and a struggle took place for about 50 seconds before you grabbed hold of the baseball bat and threw it on the floor nearby. You then knelt on your victim whilst continuing to make demands for cash. During the struggle you used the knife to slash and stab your victim's back, hands, wrists and neck. The knife wounds caused her to bleed profusely. She continued to scream in pain and fear.
10 Your actions were seen by passers-by, and one of them telephoned Triple 0. Meanwhile, inside the store, you pulled your victim up off the floor and held her up by the back of her neck with your left hand whilst holding the knife to her neck with your right hand. You held her up facing the store's electronic cash register, continuing to demand cash, She was continuing to bleed from the assault that you had perpetrated upon her. You attempted to open the cash register yourself after your victim refused to do so, but you gave up after about 10 seconds. You then smacked her on the head with the knife, released her and walked out hurriedly from the store, taking the knife with you. You stepped back onto Flinders Street and disappeared around the corner into Bond Street.
11 Your victim was left bleeding. She ran out of the store holding the wooden baseball bat in an attempt to chase after you. She was escorted back to the store by the passers-by who had seen what was going on. Emergency services arrived shortly afterwards and transported her to hospital. At the hospital she was found to have a number of injuries, which were photographed. They were considered to be non‑life threatening, and they are as follows:
- superficial laceration to the right side of her face;
- superficial laceration to the front of the neck;
- superficial laceration to the right forearm;
- an incised wound to the left side of the back;
- a deeper incised wound to the base of the right thumb;
- a deeper incised wound to the skin over one of the right‑hand bones (in line with the middle finger);
- skin loss to the left‑hand side approximately the size of a five-cent coin;
- a 1cm reddened area over the left side of the head;
- a bruise to the left temple;
- superficial abrasion to the left eyelid;
- superficial abrasion to the left side of the nose;
- a small scratch over the right side of the neck below the earlobe;
- a yellow bruise and 5mm small scratch over the back of the left arm;
- a bruise to the outer right elbow;
- a small abrasion over the lower back.
12 At 7.58 pm you were captured on CCTV returning to your short‑stay accommodation in Parkville.
13 You were arrested at about 12.25 pm on 2 March 2022 inside the Melbourne Central shopping complex and were taken back to the Melbourne West police station for interview. You made admissions immediately to the police and you showed remorse, saying to the police, amongst other things, 'Just tell her that I'm very sorry. That's it'. You also said, 'I'm sorry. I'm sorry for what this life has made me. I'm sorry that she's had to suffer. For that. For their pain... No one ever apologised to me for what they did to me. No one was ever charged. No one was ever put in gaol. No one ever gave a fuck about me…'.
14 You explained to police that you relied upon two sources of income: what you were able to get from Centrelink every two weeks and from busking. You supplemented your income with busking to a point where you were able to make your living from that.
15 There is no victim impact statement because the victim has returned to her country of origin.
16 Turning to matters personal to you, your counsel, Mr Rofe, provided me with an outline of written submissions on your behalf dated 16 February 2023. That became Exhibit 1 on the plea. He provided me with a report from a forensic psychiatrist, Mr Prashant Pandurangi, dated 19 February 2023. Exhibit 3 was a report from Dr Zimmerman, psychiatrist, dated 27 April 2019, which had been prepared in relation to the previous offences of armed robbery for which you were sentenced to a total effective sentence of three years' imprisonment in 2019.
17
Exhibit 4 was a report from Dr Harriet Downing, neuropsychologist, dated
1 October 2022. Exhibit 5 was a report dated 18 April 2000 from the Department of Human Services in relation to the continuation of a guardianship order which had been in place in respect of you since 1988. Exhibit 6 was a medico-legal report prepared in 2020 in support of some civil action you were taking against various parties - the details of which I need not go into. Next, there was a letter from a specialist social worker named Witt Gorrie dated
28 February 2023, which dealt with your gender issues and the issues that you face as a person with such issues.
18 Before I go into the details of the submissions I might say that the reports as a whole, and all the information with which I have been provided, make out a very strong case for the application of the Bugmy principles. They tell a revealing story of what can happen to a young person who, for various reasons beyond their control, becomes enmeshed in the provision of care away from parents. It is clear that your mother was not able to look after you in your early years.
19 You suffered a very significant number of wrongs – physical and sexual assaults upon you - and, not surprisingly, drifted into drug abuse at a very early stage in life. You were quite unable to cope with school, either at primary school or secondary school. You had deficits (which were never dealt with) in your capacity to receive education and to apply such education as you had. You were prey to adults who would take advantage of you and deprived you of any kind of control over your life. You were deprived of any real love, affection and nurture of a kind that we would all hope that a young person was entitled to in our society.
20 There were only a very few years during which you received any sort of respectful, caring and loving treatment. They were obscured by the remainder of your childhood, which was beset with influences and treatments that no child should ever have to undergo. The effect of all that I think was probably best summed up in the report of Dr Pandurangi - and I am going to read paragraphs 52 and 53 of his report because I think it is necessary to put those matters on record. Starting with paragraph 52 I read from the report:
‘The physical, psychological, and emotional trauma of such a serious nature, over prolonged periods, during the critical formative years, is likely to foster a sense of general mistrust, anger in others and insecurity at times of distress. It can also have a deleterious impact on various areas of personality functioning, such as identity, interpersonal relationships, and emotional regulation. It left her vulnerable to develop various mental health conditions including depressive and anxiety disorders, post-traumatic stress disorder and personality disorder.
‘The attachment difficulties and early life experiences meant that she unfortunately developed a range of interrelated deficits in personality functioning, which have gradually worsened as she grew older. Her personality is characterised by a profound lack of sense of self which is manifest in poor self-esteem, sensitivity to criticism, poor boundaries, being easily influenced by others and deficits in self-direction. She also had significant problems in interpersonal functioning characterised by lack of or problems in understanding perspective of others (empathy deficits), difficulties in maintaining stable or mutually satisfying relationships and an inability to deal or resolve conflicts in relationships.
‘She also presents with a range of other personality disturbances including significant emotional dysregulation, impulsive behaviours and engaging in potentially self-damaging or aggressive behaviours. In my view, she would be mostly likely diagnosable, with a Severe Personality Disorder with prominent negative affectivity disinhibition traits, and with a borderline pattern. It is likely that her personality functioning would fluctuate depending on the stressors she is experiencing. I would consider her personality difficulties as enduring in nature which leads to serious impairment in her psychosocial functioning.’
21 He went on in paragraph 59 to describe aspects of what you had told him as reflective of a possible diagnosis of dissociative identity disorder. Although he pointed out that that diagnosis was controversial and gave rise to a good deal literature, it seemed to be reflective of the history that you gave him.
22 In his report (Exhibit 6) Associate Professor Robertson described you as being permanently unemployable. I paraphrase what he actually said, but I think that is the effect of his assessment. It seems to be consistent with the careful reports of Dr Pandurangi, Dr Zimmerman and Dr Downing. It is also reflective of the report of the Department of Health and Social Services in 2000 where your background was described in similarly graphic terms, which predicted the pattern of behaviour that you appear to have engaged in as a result of the deprivations that you experienced during your childhood.
23 Your counsel described your family life as an unmitigated disaster from a very young age. He described how you first started using cannabis when you were nine. You started using heroin between the ages of 11 and 13, and you have used heroin intermittently since that time. You started chroming at the age of 15 and chromed daily between the ages of 15 and 17. You have chromed on an ongoing basis since then with the majority of your recent criminal history being offences committed whilst under the influence of chroming.
24 You started using amphetamines when you were 23 and switched to methylamphetamine at the age of 24. You have used that intermittently since. You consumed alcohol for a while but you stopped drinking nine years ago. Your counsel, quite rightly, conceded that your victim in the offending conduct was a soft target, a vulnerable victim, being a lone worker and female. He conceded that that is an aggravating feature of your offending. You covered your face with a blue surgical mask. It was during the COVID period and it was not an unusual occurrence for people to be masked.
25 Although the events took place for a relatively short time, between 5 and 10 minutes, it was intense offending. The victim would have been under great stress and fear. It involved a degree of persistence and viciousness which undoubtedly would have been intended to put the victim in great fear. You could, if you had chosen to do so, have inflicted much greater injury than you did. You used the knife with sufficient force and effect to increase the level of fear in your victim. That said, she showed remarkable tenacity and courage in seeking to fend you off and pursuing you as you fled the scene.
26 Your counsel rightly conceded that your offending is at least in the midrange of objective seriousness. He pointed out that you have shown remorse. You told the police that you were sorry. You apologised for your offending conduct in your interview with the police, and you indicated a plea of guilty at the earliest opportunity. You are entitled to receive maximum benefit for your early pleas. They reflect remorse.
27 The so-called Worboyes principles apply. You have been in custody now for a year and a little more during the COVID era. I understand that restrictions still exist within the prison system.
28 Having dealt with the profound disadvantage that you have suffered through your upbringing and early life, your counsel drew my attention to the decision of the Court of Appeal in this State in the case of Marrah v the Queen [2014] VSCA 119 at paragraph 16 where the court said:
'… The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender's criminal behaviour. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus. That is not to say that an offender's social disadvantage has the same mitigatory relevance for all of the purposes of punishment. It may so explain the offender's conduct that the offender's moral culpability may be substantially reduced, yet it will increase the importance of protecting the community from the offender. It will not diminish the need for the sentence to vindicate the dignity of a victim and reflect the community's disapproval of the offending.'
29 That points out the issue I have to deal with, namely, the balance between the various competing sentencing considerations. Your counsel identified the fact of your extensive substance abuse and addiction from a young age as flowing from your disturbed childhood. Ordinarily drug use and the blurring of boundaries that arises from drug abuse do not provide any mitigation for offending conduct of this kind. Where the profound disadvantages that you suffered have led you to drug abuse at a very young age, it seems to me to be entirely within the statement of Justice Smith in the case that your counsel has taken me to, namely, R v Rookledge [2004] VSC 300, where he said:
'As to moral culpability, it is relevant, in my view, that his lengthy drug abuse, a consequence of deep seated problems flowing from an appalling childhood, affected his thinking and judgment at the time. This diminished, to a limited extent, his moral culpability.'
30 That principle should apply in this case.
31 Your counsel called you to give evidence. It was clear that you testified from the heart. It is clear that you have become institutionalised. I am inclined to think that your offending, at least to some extent, may have had the short-term objective of obtaining drugs, or money for the purchase of drugs, but that to the extent that it was always placing you at risk of being caught, you were willing to welcome the opportunity of returning to the relative security of a further period of incarceration. Incarceration has not, I think, for some time held any fear for you and you are able to cope well in that environment.
32 Unfortunately it means that you do not have good prospects of rehabilitation, as your counsel readily accepts. But it is a factor that I need to take into account in balancing the principles I need to apply in determining the appropriate sentence. The purpose of sentencing is not to increase the risk of continued institutionalisation. To the extent that it is possible, rehabilitation is still an important objective of sentencing. Your counsel, I think with due sensitivity, urged me to make a non‑parole period that was generous in giving you the opportunity of pursuing rehabilitation on parole.
33 There are, unfortunately for you, many hurdles in your way. You have a lot to deal with in your transfer from male gender to female gender. You have hurdles in relation to housing and emotional supports and other supports that would help you through, not just getting back into the community, but dealing with the emotional issues that are inherent in your passage from one gender to another. You identify as female and we have endeavoured to conduct these proceedings with due respect for that, as have the professionals who have constructed their reports with that in mind.
34 You will appreciate that I have a duty to do and, whilst I accept that whether by reference to Verdins principles or by reference to the Bugmy principles, your moral culpability is significantly reduced, the other side of the coin is that I need to ensure that the sentence I impose pays proper regard to protection of the public. I do not find it a particularly easy exercise, but doing the best I can I am ready to pass sentence upon you.
35 Ashley McKenzie:
- on Charge 1 on the indictment you are convicted and sentenced to imprisonment for three years and six months;
- on Charge 2 you are convicted and sentenced to imprisonment for one year and nine months.
36 I order that nine months of the sentence on Charge 2 be served cumulatively upon the sentence on Charge 1, making a total effective sentence of four years and three months' imprisonment.
37 I fix a non‑parole period of two years and four months.
38 I declare 372 days pre‑sentence detention as time to be reckoned as served on the sentences that I have imposed and deducted administratively from the sentence you will actually have to serve - and I order that those facts be noted in the record of the court.
39 Pursuant to s6AAA of the Sentencing Act I further declare that, but for your pleas of guilty, I would have sentenced you to imprisonment for six years with a non‑parole period of three years and nine months.
40 I made the disposal order in terms of the draft with which I have been provided.
41 Are there any other matters?
42 MR ROFE: No, Your Honour. May it please the court.
43 MS DICKENS: No, Your Honour.
44 HIS HONOUR: And I would particularly like to thank both counsel for the careful and nuanced submissions on both sides. Thank you.
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