Director of Public Prosecutions v McKewen

[2020] VCC 743

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

AT GEELONG
CRIMINAL JURISDICTION

CR 20-00103

DIRECTOR OF PUBLIC PROSECUTIONS

v

HENK MCKEWEN

---

JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	4 May 2020
DATE OF SENTENCE:	28 May 2020
CASE MAY BE CITED AS:	DPP v McKewen
MEDIUM NEUTRAL CITATION:	[2020] VCC 743

REASONS FOR SENTENCE
---

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr M. Brugman

HIS HONOUR: 

1Henk McKewen, on 26 April 2019, you were at The Gateway Hotel playing the pokies with an unnamed friend.  This was not a good plan, as you were at the time in debt and losing money at the pokies.

2The victim was also playing the pokies but he had some luck and won about $1,000.  He shouted you and your friend drinks.  The two of you eventually went back with the victims to his house for further drinks and socialising.  In the early hours, as you and your friend went to leave, instead of getting into your car and going, you attacked the victim, hitting him with a ceramic cup and threatening him with an axe handle.  You demanded his money.  His wife heard him calling out and she called 000.  You then took off empty handed.

3The victim was taken to the hospital.  He had three or four stitches in his arm and treatment for a lump on his head.  He has suffered headaches subsequently and anxiety of a consequence of what you did.  In his victim impact statement, he said that 'Since the crime occurred, myself and my wife have been suffering from anxiety and feeling unsafe in our own home, especially with a young child.  Socially, I was very outgoing and friendly before the offence took place.  Whereas now, I find myself reserved, less outgoing and less trusting of people.'  He has had to install a security system to feel safe and he does get headaches, as I have mentioned, from the attack upon him.

4Your identity was ascertained as you had during the night sent a text message to the victim.  The police contacted you and you attended the police station for an interview on 13 May.  You made no comment to the questions put to you.  You were charged.  The matter was then before the Magistrates' Court on 24 May 2019 but because of funding problems, it did not resolve until 24 January 2020.

5However, you had from the outset accepted responsibility.  You indicated your great regret and sense of stupidity immediately after the crime in a text message to your then partner.  As I will elaborate upon in due course, you have shown considerable remorse.

6You were 25 years at the time.  You had fallen back into drug use and were in debt and not working.  All this was in contrast to your life earlier in your 20s.  The broader context is that your upbringing was chaotic.  Your parents split up when you were young but both households were unstable due to the adults abusing alcohol and cannabis.  Your grandfather wrote of these matters in his letter to the court.  He makes it clear that you are known as Billy McKewen.  Bill McKewen wrote 'Billy has had a rather turbulent upbringing and became somewhat rebellious at an early age.  I believe the breakdown of his mother and father's marriage had a far greater detrimental effect on him than any of us imagined with the subsequent result of him displaying bad behaviour.  The household he was raised in was one of constant disarray and conflict.  It was not uncommon for the adults to engage in excessive alcohol and cannabis abuse.'

7He says you had a leaderless life with no good role model to base your life on.  He went on, in recent years, you have to great extent realised your mistakes and striven to correct them.  You settled to a steady relationship with a partner, enjoyed a good lifestyle and full employment for a considerable amount of time.  It was, as he says, at the end of that relationship that you lost your stability and went off the rails.  You returned to using drugs and alcohol.

8He notes that in the last 12 months, you have completely modified your lifestyle and sought and gained permanent employment and have expressed true sorrow and remorse for what you carried out.  He provides you with his whole hearted, unconditional support and is confident you will not reoffend.

9As an adolescent, your schooling was interrupted and your behaviour poor.  Because of your mother's problems and those of some of her male friends, you ended up leaving the home around 14 or so, far too young, and unfortunately, you lived with drug users.  After school, you started but did not complete an apprenticeship.  You were at this time using significant amounts of methylamphetamine.

10A friend crashed your car and was very seriously injured.  This was a traumatic event that caused you to wake up to yourself.  You then secured work and were off drugs and in a stable relationship.  Those years reveal your capacity to live a lawfully and productively life despite your difficult upbringing and your early addiction to drugs.

11However, in 2018, your relationship ended.  You did not deal with this well at all.  This was followed by the tragic, sudden death of your mother's partner, a man who had been a good influence on you and your mother.  His death had a significant impact on you.  You resumed drug use and formed a new relationship with a drug user.  You were trying to assist your mother in her grief and help your father who was, by that stage, an alcoholic and mentally traumatised by events in his own childhood.

12Your underlying depression was more to the fore.  You were not able to hold employment.  You were in debt and gambling on the pokies chasing losses.  In this frame of mind, you and the victim crossed paths.  You could have and you should have gone home as you headed out of his house after enjoying his hospitality.  But regrettably, you spontaneously decided to try and rob him.  You did not succeed in getting any money and were quickly put off.  The fact that you had an axe handle that you displayed as well as the ceramic cup adds to the seriousness of these matters.

13Fortunately, the victim recovered from his injuries which were never severe.  Thus, while your offences are serious, it is not at the worst end of this kind of offence.  It was lacking in thought as to the consequences which were inevitable detection.

14So often in pleas, it is, in my view, and accurately said that the offending was spontaneous and unplanned when in truth, the crimes were poorly planned and ill-considered but not actually spontaneous.  Yours was a truly spontaneous act.  It quickly came unstuck and it was a matter that you instantly regretted.

15These matters lower your moral culpability.  While the victim has been adversely affected by your offending, it was, in my view, looking at all the circumstances at the lower end of gravity and your moral culpability is not high.

16What is also important in this sentencing task is how you have responded to this offending.  As I have noted, you have had an impressive work history over a three to four year period, despite all your difficulties as you grew up and your drug use.  As a consequence of your offending, you lost a job that you had just secured, indeed probably after the events themselves.  You got a new job shortly after that as a tyre fitter.  You have moved on to another workplace since the first one and impressed your current employer and your supervisor.  Their letters were important.  They will have you back once the COVID-19 restrictions are relaxed.  Employment is an important factor in keeping you away from drugs and stable.

17Also since your offending, you have sought out and have stuck with drug counselling.  The counsellor, Ms Taverner, wrote the following, 'I have been providing counselling for Henk since his referral on 25 July 2019.  I have been seeing him regularly for fortnightly appointments.  His attendance has been good.  He's engaged very well with the sessions and has found much benefit from attending.  He is pleasant and cooperative.'  She goes on, 'Henk reported wanting to attend counselling for his drug use, depressive symptoms and anxiety symptoms.  We have been working on this since his referral.  He has made some very positive progress.  He also has a history of trauma from his past which we have touched on however we plan to work on this in more depth after his court hearing and I am happy to continue appointments on a regular basis.'

18Your counsel submitted that although the nature of the offending was serious, the array of significant mitigatory matters being one, your plea of guilty and your remorse; two, your lack of prior matters, meaning it could be said that this was out of character.  There are some violent priors that you have but they are old and received without conviction adjournments or undertakings.  Three, your efforts at rehabilitation with respect to drugs and mental health were matters raised as strong mitigatory matters by your counsel; four, getting employment; and, five, being involved in a new stable lifestyle and relationship.

19Your counsel said your steps towards rehabilitation and all the other mitigatory matters made a community corrections order the appropriate sentence.  He pointed out that at the moment with the COVID-19 pandemic, imprisonment is particularly onerous, especially for someone who would be going to prison for the first time.  Any rehabilitation aspects of prison or any psychological treatments are very much curtailed at this time.  These restrictions are very considerable.  Gaol is, in my view, very much a different place and a different form of punishment.  It is more onerous and severe.

20The prosecution contended that a community corrections order with a term of imprisonment was within range however the primary aspect of the prosecution's submission was that some imprisonment is required to be served.

21I had you assessed for a community corrections order.  You were seen as suitable.  You have never previously been on a community corrections order, thus there is no history of poor compliance, which gives confidence.

22This case brings to the fore the decision of the Court of Appeal in Boulton v The Queen.  That case and others that followed make clear that what was described as the new sentencing landscape was not a simple or automatic get out of gaol card, to use a phrase coined by Priest JA.  Rather, what flows from Boulton and indeed from the Sentencing Act itself is that if all sentencing purposes can be satisfactorily met by a sentence less than prison, then the court cannot impose imprisonment.

23Put more accurately, if all the sentencing purposes can only be satisfied by imprisonment, then and only then can a court impose imprisonment.  As the Court of Appeal in Boulton said as to the task confronting the sentencing court, it said the following:

'The sentencing court should ask itself a question along the lines of given that a community corrections order could be imposed for a period of years with conditions which would be both punitive and rehabilitative, is there any feature of the offence or the offender which requires the conclusion that imprisonment, with all of its disadvantages, is the only option.'

24There is nothing about the offence or you as the offender which in my view requires the conclusion that gaol at this time is the only option.  The key is to consider if a simultaneous punishment of a community corrections order and its rehabilitative aspects can meet the sentencing purposes that are relevant here, being denunciation, deterrence and the facilitation of your rehabilitation.  In cases of this kind, deterrence is important.  So too is denunciation of your offending.  It was wrong to attack and attempt to rob the victim and there must be consequences properly imposed by the court.

25However, to turn again to the Court of Appeal guideline decision in Boulton, it was made clear that a community corrections order may be suitable even for very serious crimes with maximum terms of 25 years, which may in the past have attracted medium terms of imprisonment.

26The weight of the sentencing purpose of denunciation and deterrence in this case does not overwhelm all other matters.  These purposes can be met, in my view, by an onerous community corrections order.

27In your case, you have come to grips with your drug problem.  This is important.  So too is that you are dealing with the underlying personal issues that give rise to your drug problems.  Your drug rehabilitation and counselling have allowed you to resume your lawful life that you had in your early 20s.  You have secured a solid job and as I said, this is an important matter in the current circumstances.  If possible, remaining employed is a high priority.  You are likely to remain stable if employed and drug free.

28You are not someone with a long and continuing criminal history of any concern and this conduct was, it seems to me, out of character.

29Your plea of guilty must be acknowledged and be reflected in the sentence.  It must be palpable to you and to others that if you plead guilty, there will be significant mitigatory benefits.  It adds to the capacity of the court to exercise the sentencing discretion to impose a penalty less and of a different kind than would have been the case had you pleaded not guilty.

30A community corrections order is punishment and it has deterrent value and effect.  That is so especially if the conditions are onerous and the order of an appropriate length.  A community corrections order can be onerous and in my view, if it is onerous, then the community corrections order alone is sufficient to meet all sentencing purposes.  It is the just and appropriate sentence.  A single aggregate sentence is in my view appropriate.

31For the crimes of attempted armed robbery and recklessly causing injury, you are convicted and placed on a community corrections order for two years and four months.  There will be a number of conditions.  They include supervision, unpaid work, drug treatment, mental health treatment and program treatment.

32So what I need to make clear to you is a document will be printed for me and I will go through each and every one of those conditions.  So there will be unpaid work that is required, the total amount of hours is 200 hours.  However, all the treatment and assessment and attendance at programs can count as hours towards unpaid work.

33Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of three years with a minimum of 20 months.

34Are there other orders required?  There is something required, that is a disposal order.  That disposal order in respect of an axe handle will be granted.

35MR MOORE:  Thank you, Your Honour.

36HIS HONOUR:  Thank you.  I will just print out the community corrections order.  I will go through it in detail and Mr McKewen has to consent to that order orally, that is permissible and then he will have to get himself engaged with the Office of Corrections thereafter. 

37MR BRUGMAN:  There are two small matters, Your Honour.

38HIS HONOUR:  Yes.

39MR BRUGMAN:  Mr McKewen is now back working and I have spoken to his boss and his supportive and he will give his corrections order priority.

40HIS HONOUR:  Thank you.

41MR BRUGMAN:  The second matter as Your Honour may recall, I just raise the issue of his telephone just to confirm he is able to get that back in due course.

42HIS HONOUR:  Yes.  It is not part of the disposal order.  So just bring it up with the Crown or the informant.

43MR BRUGMAN:  If Your Honour pleases.

44HIS HONOUR:  Thank you.  If you want to have discussions, Mr McKewen, feel free to do so, Mr Brugman, but just turn your microphone off.

45MR BRUGMAN:  Thank you.

46HIS HONOUR:  Mr McKewen, the community corrections order will last for 28 months, it starts today and goes until 27 September 2022.  There are a number of conditions that apply to all those on community corrections orders, they are mandatory.  The first is most important.  You must not commit another offence for which you can be imprisoned during the time the order is in force.  If you do commit another offence, even if a magistrate simply fines you or something, that is neither here nor there.  The commission of the offence will mean that you breach this order, you will come back before me.  The same will not be repeated.  So you must remain offence free for the whole time of this order and remain that way for the rest of your life.

47You must comply with obligations and requirements under the sentencing regulations relating to identifying you and so on and so forth at the Community Corrections Centre.  They will need to take a photo. Just cooperate with that.

48You must report to and receive visits from the Office of Corrections.  You must report to the Office of Corrections here in Geelong within two clear working days.  As I understand it, that will be arranged via telephone.  There are numbers here.  So you must do that.  You must let the Community Corrections officers know within two clear working days if you change your address or your job.  You cannot leave Victoria without getting permission and you must obey all lawful instructions and directions.

49They are the mandatory terms.  In addition to that, specific to you is you must perform 200 hours of unpaid community work over the 28 months.  Now that is not optional.  You just have to do the hours as they direct you over that time.

50You must also be under the supervision of Community Corrections for 28 months.  So they will need to see how you are travelling for that time, two years and four months.  You must undergo assessment and treatment for drug abuse and dependency.  You must undergo treatment and assessment for alcohol abuse.  You must undergo any mental health assessments and treatment that you are directed to and you must participate in programs that address factors related to your offending.

51Now do you understand those conditions and if you understand the effect of them and consent to the order being made, then that will be the order of the court.  So do you consent to this order being made, Mr McKewen?

52OFFENDER:  Yes, Your Honour.

53HIS HONOUR:  Thank you.  I will note that on the document and that will bring the matter as far as this court is concerned to an end. 

54Mr Brugman, the corrections order and the other orders will be delivered to you in the usual ways and if you could ensure that there is a connection or communication with the Office of Corrections so that he starts this order and they can work with him as to how it all is to operate.  I think the first point of connection is by phone but you may know more about that than I do.  Is there anything else required?

55MR BRUGMAN:  No, Your Honour.

56HIS HONOUR:  Mr Moore?

57MR MOORE:  No, Your Honour.

58HIS HONOUR:  Thank you.

‑ ‑ ‑