Director of Public Prosecutions v McKeon-Muller
[2018] VCC 862
•15 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01510
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TONY McKEON-MULLER |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 June 2018 | |
DATE OF SENTENCE: | 15 June 2018 | |
CASE MAY BE CITED AS: | DPP v McKeon-Muller | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 862 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: One charge of causing serious injury recklessly – disproportionate defence of another by defendant who ran at victim and struck him in the face with a rock causing serious injuries – youthful offender (22 years at time of offence) – good prospects of rehabilitation – total effective sentence of six months’ imprisonment together with a Community Corrections Order of two years.
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J D Singh | Office of Public Prosecutions |
| For the Accused | Mr S Kenny | Greg Thomas Solicitors |
HER HONOUR:
1 Tony William McKeon-Muller, you have pleaded guilty to one charge of causing serious injury recklessly, which carries a maximum penalty of 15 years’ imprisonment.
2 The circumstances of your offending are summarised in the Prosecution Opening (Exhibit “A”).
3 On the evening of 30 January 2016, your mother and step-father held an 18th birthday party for your twin sisters in their home. The party was to conclude about 10.30pm, but one of the guests, Justin Perkins, the 17 year old son of the complainant, Paul Perkins, was still waiting for his father to collect him at about 11.30pm. You were waiting with Justin outside, holding an umbrella, as it was raining. Justin had been in telephone contact with his father. He told you that his father had been drinking and would be collecting him soon. You were concerned about the situation and reported it to your parents, who agreed that they would not permit Justin to be driven home by his father if his father was intoxicated.
4 At approximately midnight, the complainant arrived driving a vehicle. In the front passenger seat was a friend, Peter Blackburn, who was drinking red wine from a glass. Your step-father, Damian Tirchett, questioned the complainant about his level of intoxication while you were standing close by. The complainant got out of the car and had stern words with your step-father. He then forced his son, Justin, to affix L plates to the windscreen and stated that Justin would drive. Your step-father continued to tell the complainant that Justin could not go home with him because of the complainant’s level of intoxication.
5 The complainant got out of the car and had a scuffle with you. Each of you had the other in a headlock before being separated by your step-father and Mr Blackburn. Your step-father removed the key cars from the ignition of the vehicle. The complainant then aggressively approached your step-father, who began walking backwards, and another scuffle ensued. On seeing this, you rang 000 and asked for the police to attend. Your mother took over the conversation, stating that her husband was arguing with the intoxicated driver and being assaulted by him.
6 You had been standing behind the location where your step-father and the complainant were scuffling. You then ran at the complainant “full pelt” and struck him in the face with what appeared to be a stone or a brick. The complainant fell to the ground with blood pouring from his face.
7 Mr Blackburn drove the complainant to Angliss Hospital and he was later transferred by ambulance to the Alfred Hospital with significant injuries. These consisted of frontal bone depression with complicated fractures, fracture of the right and left eye orbital roof, fracture of the right orbital floor, fracture of the right and left medial wall, air on the brain, a small brain bleed, and a large cut to the forehead. The complainant was placed into an induced coma and admitted into intensive care.
8 At the Alfred Hospital, the complainant underwent surgery, which included bi-frontal craniotomy and anterior fossa repair. The complainant remained in the Alfred Hospital until he was discharged on 8 February 2016. The principal diagnosis on the discharge summary was noted to be compound depressed skull fracture involving the frontal sinus and anterior cranial floor, with frontal lobe contusion and dural bleed.
9 It is plain that the injuries suffered by the complainant were very nasty indeed. In a Victim Impact Statement dated 7 June 2018 (Exhibit “B”), the complainant states that he has suffered multiple and significant emotional and physical consequences of his injury. These include anxiety, pain and altered sensation in various parts of his face, and he still suffers head pain, at times, and some loss of his sense of smell and hearing, and loss of memory and concentration. He states that he tends not to socialise. He has suffered great stress because, for some time, he was not able to run his business, or to drive or lift and operate machinery. Also, he sustained financial loss and expenses because he had to pay someone to help out with the business.
10 A Victim Impact Statement was also tendered from the complainant’s wife, Amanda Perkins, dated 7 June 2018 (Exhibit “C”). She refers to the horror of seeing her husband’s injury and the emergency trip by ambulance to the Alfred Hospital, and the major surgery undertaken and her anxiety in awaiting the outcome. She refers to the impact on the whole family and the worry and inconvenience of her having to take over the running of her husband’s windscreen fitting business, which had only one employee, and the necessity of hiring a manager and contractors to help out. This impacted upon her physically and emotionally. In addition, she had to care for her husband and drive him to appointments, as he was not able to drive, at all, until April 2016. She notes that it is now harder for her husband to plan and understand things. He has trouble with his memory and she watches him still struggle every night as he tries to organise his job assignments and workers.
11 You were interviewed by police on 2 March 2016. Your record of interview impresses me as a fairly full and frank version of events. Indeed, Mr Singh, for the prosecution, acknowledged that there had never been a dispute between prosecution and defence about what had occurred. Rather, the issue concerned your state of mind at the time you struck the victim and you had filed a defence of self-defence or defence of another.
12 In your record of interview, you told police that you had concerns about Justin going in the car with his father as you had had a few mates die from drink-driving in the past. You considered that the complainant was intoxicated and, after the initial altercation with yourself, you called 000 with a view to alerting police so that they could come over and stop the complainant from drink-driving with Justin as his passenger. You stated that, while this was occurring, the complainant was right near your step-father, whom you heard yell out, and you knew that your step-father was not a “fighting type person”. You stated, also, that you felt under threat a little bit, yourself, as you thought the complainant’s “mate would have jumped in as well”, and you were concerned about your mother’s presence too. You stated that you felt that you needed to do something to stop the complainant and “automatically just clicked and just ran over there”. You said it was a bit of a blur because you were angry, but believed that you probably picked up a rock and struck the complainant in the face with it. You stated that you did not see what was happening, but the complainant and your step-father were close to each other and you just heard a yell and felt your step-father was being overpowered by the complainant.[1]
[1]Answer to questions 124 and 125
13 You stated that you had “probably (gone) a bit too far (with) what (you) did”.[2] You agreed with police that you acted “in the heat of the moment”.[3] You stated “I don’t feel good for what I’ve done”.[4] You stated that you had made enquiries from others about the complainant and “when I found out he was air lifted I was a bit worried that I’d done something bad”.[5]
[2]Answer to question 111
[3]Answer to question 103
[4]Answer to question 114
[5]Answer to question 130
14 I accept that your mother and step-father and yourself held genuine concerns for the welfare of Justin being in a car with his father, who appeared to be intoxicated. Indeed, after the complainant arrived at Angliss Hospital at 1.12 am, it was recorded “patient intoxicated with alcohol”.[6] The complainant’s blood alcohol concentration, over one hour after the incident, was 0.082 per cent. Nearly three hours after the incident, namely at 2.45am at the Alfred Hospital, a blood sample was taken and analysed and the complainant’s blood alcohol concentration was still 0.05 per cent.[7]
[6]Depositions p373
[7]Depositions p366
15 I accept that the complainant’s behaviour on this evening was irresponsible, aggressive and offensive. The complainant’s own son, Justin, stated in a VARE that his father had started the fight and was calling you and your parents idiots and behaving aggressively trying to get him, Justin, into the car. He described his father’s behaviour as being “like a total arsehole”. He stated that your step-father had just been trying to protect him when his father, the complainant, became increasingly aggressive, and that both Mr Blackburn and your step-father had tried to get the complainant to calm down before the situation escalated.[8] Justin stated that, when he saw the expression on his father’s face as he got out of the car, he knew that things were going to end up really bad because he had never seen him like that before. He thought that his father was going to get into a fight. He stated that he had seen him yell at the top of his voice, but nothing like what occurred on this night.[9]
[8]Statement of Justin Perkins, p275, 278 and 280 of the depositions
[9]Statement of Justin Perkins, Depositions p286-287
16 Justin suffers autism and attends a special school, which is also attended by one of your sisters. I accept that you were genuinely concerned about Justin, being compelled by his father to travel in a vehicle whilst his father was intoxicated. Your counsel stated that, when you were 15 years of age, a close friend of yours died after being a passenger in a car driven by an intoxicated driver. You have been acutely conscious of the dangers of drink-driving ever since. Indeed, the complainant’s friend, Mr Blackburn, in his statement to police, stated that your step-father and he talked calmly together and you “came up to [him] saying [you] had had some mates die drunk driving in a car crash. Justin was by then holding Paul back because Paul just wanted those keys and he was very verbal.”[10] I accept that you were acting responsibly in trying to ensure that the complainant did not drive whilst he was intoxicated and that Justin would be safe. Unfortunately, the complainant’s aggressive behaviour escalated, particularly after your step-father removed his keys from the ignition. I also accept that your offending behaviour occurred on the spur of the moment in this situation of escalating aggression from the complainant. However, to hit the complainant in the face with the rock, as you did, was a disproportionate and unnecessarily violent response to his aggression, particularly where you had already done the right thing and called the police.
[10]Statement of Peter Blackburn, p66 of the depositions
17 Unhappily, it would seem that you have something of a tendency to let your anger get the best of you. You have recently turned 25 years of age, having been born on 31 May 1993. You have a criminal history which includes one charge of intentionally causing injury (of which you were convicted in January 2012) and another charge of assault with a weapon (of which you were convicted in June 2013). In each of these matters, you were originally given a Community Corrections Order. Each of these orders was contravened by you failing to comply with the conditions. Apparently, both of these offences had been committed in 2012, when you were aged 18 years. The first offence involved you punching someone at a nightclub. The second offence occurred when you were pursued after having stolen some alcohol and you produced a knife, albeit that you did not use the knife in any way to inflict an injury.
18 In a plea on your behalf, Mr Kenny asked the Court to note your relative youth, in that you were only 22 years of age at the time of offending. You had some difficulties in your upbringing. Your parents separated when you were aged five years, and, subsequently, you went to live with your mother and step-father. You have three younger sisters and a twin brother, and a close supportive family network. You apparently struggled academically and, ultimately, after completing Year 10 at the age of 16 years, you left school and began a plumbing apprenticeship. You did not manage to complete the academic component of the apprenticeship, but were capable when it came to practical skills on the job. You have worked regularly as a roof plumber over a number of years, albeit that it is necessary for a qualified plumber to sign off on the jobs that you undertake.
19 Mr Kenny noted that you do not have any problem with alcohol or illicit drug abuse or any history of mental illness. However, he did tell the Court that, earlier this year, you were fined in the Magistrates’ Court for possession of methylamphetamine and, also, for possession of weapons (two steak knives), which were found in your bag on a routine search by police. Your counsel stated that you had used methamphetamine recreationally and urged the Court to note that in a reference from your step-father (Exhibit “1”) he had expressed the belief that, since this offending, you had “not been [yourself]” and had exhibited behaviour which appeared to be associated with depression and anxiety and had found difficulty in trying to hold down work. Mr Kenny urged the Court to find that you had good prospects of rehabilitation and that you are not, by nature, a violent person. Mr Kenny stated that your relevant prior convictions are for offending some six years ago and you should not be treated as a dangerous person, particularly as your offending behaviour was in circumstances where your step-father was under attack by the complainant and your assault of the victim was not premeditated but an immediate response to such attack. Indeed, Mr Singh, for the prosecution, acknowledged that “this is a sad case and the Crown does not allege any premeditated malice.”
20 Mr McKeon-Muller, you used a rock to attack a human being and the injuries which he suffered were very serious. The Court must denounce this conduct and emphasise general deterrence, so that others who might be minded to take the law into their own hands by using unnecessary force, even where a person is behaving aggressively, will know that they cannot do this with impunity. Also, in the light of you having two prior court appearances for assault, there is some need to place emphasis upon specific deterrence. However, I am conscious that those matters were committed back in 2012. It is not to your credit that you contravened each of those Community Corrections Orders, however, it would seem that the breaches did not involve actual reoffending, as distinct from a failure to prioritise your obligations under the orders over your work commitments. This is apparent from the most recent report from the Office of Corrections, Exhibit “D”, which assesses you as suitable for another Community Corrections Order. This report was provided to the Court to enable a Community Corrections Order to be considered as a possible sentencing disposition.
21 The prosecution has submitted that the gravity of your offending is such that the only appropriate sentence is a term of imprisonment with a non-parole period. Your counsel has submitted that a Community Corrections Order can satisfy all sentencing objectives in accordance with the reasoning in the guideline judgement of Boulton v The Queen.[11]
[11](2014) 46 VR 308
22 I have wrestled with this sentence. On the one hand, to use a rock to strike another human being in the face is a violent anti-social act and the injuries caused to the complainant are very serious. On the other hand, you were only 22 years at the time of offending and it was in no way pre-meditated. There is no suggestion that you were spoiling for a fight or that you deliberately searched out a rock to use as a weapon upon the complainant. He was the original aggressor. Your offending was a rash, spontaneous over-reaction to the belligerent and inappropriate behaviour of the complainant towards your step father, whom you wanted to protect.
23 You have pleaded guilty to the offence. Although your plea of guilty was only entered on 28 May 2018, which was the date upon which the matter was listed for trial, I do note that you were to stand trial on the more serious charge of intentionally causing serious injury and, on that day, your offer to plead guilty to the lesser charge of recklessly causing serious injury was accepted by the Crown. I do not find your late plea of guilty to be inconsistent with remorse and find that your honesty when interviewed by police and acknowledgement that you had gone too far in the heat of the moment, and expressions of concern about what you had done and the state of your victim requiring emergency transfer to the Alfred Hospital, are indications of remorse. Also, by your plea of guilty, you have shown a preparedness to facilitate the course of justice and spared the victim and his autistic son, Justin, having to give evidence at the trial. In addition, you have saved the State the trouble and cost of a trial. In these circumstances, you should receive a meaningful discount on the sentence which would otherwise have been given.
24 The previously-mentioned reference from your step-father states that he first met you when you were seven years old and that you disengaged from mainstream schools and attended a community school until you left school in Year 10. Your step-father is a school principal and your mother is a teacher. Your step-father stated that your teachers at the community school described you as enjoyable to work with and they respected you as being a very loyal and committed member of the school community. He stated that you are a kind-hearted and generous person, who helps others on weekends with such things as collecting and stacking firewood and doing odd jobs. You also assist him with maintenance, such as cleaning gutters at the school where he is principal. He confirms my impression that you are sorry for your actions. He states that you have suffered disgrace amongst the family because of your offending and that you have indicated that you were willing to attend an anger management course in order to help regulate your emotions. He notes that you express emotional discomfort whenever your offending is mentioned and I have previously made reference to his belief that you suffer from some depression and anxiety and have found it increasingly difficult to hold down work with court matters hanging over your head.
25 It seems that, in spite of your academic difficulties, you have demonstrated a good work ethic, but your concerns about your offending have impacted upon your ability to remain in steady employment in recent years. It is clear that you have a loving, stable and supportive family. Indeed, you were assisting your parents to host the birthday party for your twin sisters at their home on the night of your offending. Approximately half of the young guests at the party had special needs and were attending the same special school, which is attended by one of your twin sisters and Justin Perkins. There is no suggestion that you were affected by alcohol or drugs on the night, and Justin Perkins, in his statement to police, described you as “a pretty nice kid”.[12] Your behaviour seems to have been responsible and considerate in the way you waited out in the rain, holding an umbrella over Justin as he waited some 1 ½ hours after the party had finished for his father to come and collect him. Overall, my impression is that you are a fundamentally decent person. Given these factors, I consider that your prospects of rehabilitation are probably good. You were only 22 years of age at the time of offending, and are only 25 years of age now. Your youth, coupled with your plea of guilty, remorse and your supportive family and your work ethic are reasons to be optimistic about your rehabilitation.
[12]Depositions p284
26 Overall, I find there to be significant mitigatory factors in your favour, however, this is a serious offence, as reflected in the maximum penalty of 15 years’ imprisonment. Generally speaking, where a weapon is used, albeit a makeshift one, and the consequent injuries are serious, a term of immediate imprisonment will be required in order to denounce the offending conduct, give emphasis to general deterrence and ensure just punishment. By your plea of guilty, you have acknowledged that you behaved recklessly, which means that you foresaw the probability that your actions would cause serious injury to the victim, but went ahead regardless of that probability. In this case, the likelihood that injury would result if you ran “full pelt” at someone with a rock and thrust it in their face was high and the likelihood that any injury caused would be serious was also high.
27 Although there is no up-to-date medical material before the court, it appears that the complainant has endured considerable suffering and anguish and has ongoing deficits from his serious injuries. Those injuries occurred because your behaviour was so grossly disproportionate. I am mindful that imposing a term of imprisonment must be a sentence of last resort, however, after anxious consideration, I have determined that the objective gravity of your conduct means that there must be some immediate custodial sentence. Nevertheless, the fact that you were genuinely defending your step-father, albeit excessively, and that the attack on the complainant occurred in the spur of the moment and was short-lived, with no gratuitous repetitive violence, the fact of your remorse, your plea of guilty and your good prospects of rehabilitation lead me to believe that a combination sentence of a relatively short term of imprisonment and a Community Corrections Order is a just and appropriate sentence in all the circumstances. In my view, such a sentence is capable of meeting the sentencing objectives of denunciation, general and specific deterrence, just punishment and, also, promoting your rehabilitation. The impact of even a relatively short sentence of imprisonment, particularly on someone youthful, like yourself, you has never been in custody before, should never be underestimated. In particular, the potential adverse effects on your rehabilitative prospects is something of which every judge should be mindful. Frankly, had the imposition of a suspended sentence of imprisonment still been available as a sentencing disposition, it is one to which I would have given serious consideration in your case.
28 I consider it appropriate that there be a component of unpaid community work and offence specific programs relating to violent offending and anger management. Also, in the light of what your counsel has stated about your recreational use of ice and your subsequent conviction for possession of this substance, I consider it appropriate to include a condition concerning assessment and treatment concerning drug abuse. Hopefully, if you comply with the conditions of the Community Corrections Order, this will help bring out the better parts of your character, which obviously exist.
29 On one charge of recklessly causing serious injury, you are convicted and sentenced to a period of six months’ imprisonment and to undertake a Community Corrections Order for a period of two years.
30 The following terms are attached to the order:
(a)You must not commit, whether in or outside Victoria during the period of the order, an offence punishable by imprisonment.
(b)You must comply with any obligation or requirements prescribed by the regulations.
(c)You must report to and receive visits from the Secretary during the period of the order.
(d)You must report to the Community Corrections Centre specified in the order within two clear working days after the order coming into force.
(e)You must notify the Secretary of any change of address or employment within two clear working days after the change.
(f)You must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary.
(g)You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
31 In addition, the following conditions are attached to the order:
(a)You must perform 150 hours of unpaid community work over the course of the order.
(b)You must undergo programs to reduce your risk of offending, including educative programs in relation to violent offending and management of anger.
(c)You must undertake assessment and treatment for drug use.
32 Mr McKeon-Muller, I am not able to make this Community Corrections Order unless you agree to it. Do you consent to the order and agree to obey the terms and conditions which I have just read out in Court?
33 You need to understand that, if you breach the terms and conditions of the order, then that, in itself, is a criminal offence punishable by a maximum of three months’ imprisonment. In that event, you are likely to be brought back to Court and it may well be that the Community Corrections Order will be cancelled and you will be resentenced and ordered to serve a term of imprisonment. Do you understand that?
34 Pursuant to s464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a sample of saliva in accordance with Subdivision (30A) of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I consider that this order is warranted by reason of the seriousness of the circumstances of the offending. You need to understand, Mr McKeon-Muller, that if you do not cooperate with police in obtaining a sample of saliva, which involves you placing a cotton bud inside your cheek, then police are entitled to use reasonable force to ensure that a sample of sufficient standard is obtained for placement on the database.
35 Finally, pursuant to s6AAA of the Sentencing Act, I state that had it not been for your plea of guilty, the total effective sentence would have been two and a half years’ imprisonment with a non-parole period of 20 months.
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