Director of Public Prosecutions v McKinley
[2024] VCC 1142
•19 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-23-02070
Indictment No. P11677318
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DINNIE KYAN McKINLEY |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 21 February 2024 | |
DATE OF SENTENCE: | 19 April 2024 | |
CASE MAY BE CITED AS: | DPP v McKinley | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1142 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: One charge of home invasion, one charge of causing injury intentionally and one charge of causing injury recklessly together with a Summary Charge of committing an indictable offence whilst on bail – 18 year old offender – dysfunctional childhood of trauma – Complex PTSD and substance abuse disorder – immature and at risk of adverse influence after spending almost 8 months in adult prison as first custodial sentence – application of principles in Bugmy and Verdins (limb 5) – plea of guilty but limited remorse – prospects of rehabilitation guarded
Legislation Cited: Sentencing Act 1991 (Vic); Confiscation Act 1997 (Vic).
Cases Cited:Bugmy v The Queen [2013] HCA 37; R v Verdins & Ors [2007] VSCA 102; R v Mills [1998] 4 VR 235.
Sentence: Total Effective Sentence for Charge 1, 2, and 3; an aggregate sentence of 3 years and 6 months in a Youth Justice Centre.
Summary charge: Convicted and fined $200.
S6AAA: 5 years imprisonment with a non-parole period of 2 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Ball | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr C Oldham | Balmer & Associates |
HER HONOUR:
1Dinnie Kyan McKinley, you have pleaded guilty to one charge of home invasion which carries a maximum penalty of 25 years’ imprisonment; one charge of intentionally causing injury which carries a maximum penalty of 10 years’ imprisonment; and one charge of recklessly causing injury which carries a maximum penalty of five years’ imprisonment. In addition, you have consented to one summary offence of committing an indictable offence whilst on bail being uplifted to this Court and have pleaded guilty to that charge, which carries a maximum penalty of three months’ imprisonment or 30 penalty units.
2The circumstances of your offending are summarised in the prosecution opening.[1] On 5 August 2023 at 6.40am you and an unknown male both entered the home of your victims. Both of you were carrying metal poles of approximately one metre in length. The unknown male was wearing a balaclava. Prior to entry, you accessed the electricity meter box for the home and disconnected the power. All doors were locked. A window near the front door was ajar and you forced it further open. Through it, you and your co-accused entered the residence. This is the basis of Charge 1, home invasion.
[1]Exhibit “A”
3Present in the home was a 57-year-old man and his 41-year-old female partner, together with their eight year old son, and the man’s 18-year-old son from a previous relationship. The 18-year-old son was known to you from secondary school. You apparently had some issue with him. All residents at the home were asleep when you entered.
4The 57-year-old male was awoken by noise and went into the lounge, thinking it may have been his older son. He observed a figure in the dark room and asked, “What are doing mate”? In fact, the figure was you, and you lunged at your victim and punched him on the left side of his face. Your victim then saw a second figure coming out from behind the curtain. Your victim endeavoured to prevent you hitting him further, but you continued to strike him in the head, and you and he fell to the floor. Your victim called out for his older son. As you and your 57-year-old victim struggled, your co-accused struck your victim over the head three times with a metal pole.
5Your victim’s female partner came out of the bedroom and observed you and her partner fighting on the ground. Your co-accused swung a metal pole at her, striking her to the left upper arm. The latter action comprises the basis of Charge 3, recklessly causing injury.
6Whilst your 57-year-old victim was on the floor, you got onto his back and put your arm around his neck. His 18-year-old son then arrived to observe you punching and kicking his father whilst his father was on the floor. His 18-year-old son went to assist him and the three of you began wrestling. At some point, the 8-year-old boy woke up and came into the hallway, and his mother moved to block you and your co-accused from getting to him, as her partner told her to call the police. The fight continued throughout the house and ended up in the bathroom. You fell onto the bathroom floor and kicked your 57-year-old victim in the face. He then obtained a pool cue from another room and struck you twice. Ultimately, you said something like “I’m done”. Meanwhile, your co-accused had fled from the home. The entire altercation between you and your co-offender, and your 57-year-old victim forms the basis of Charge 2, intentionally causing injury.
7Nearby neighbours came to assist in holding you down until police arrived at 7.20am and arrested you.
8At the date of commission of the offences for which I must sentence you, you were on bail for offending committed on 16 October 2022. This is the basis of the summary offence, Charge 8, committing an indictable offence whilst on bail.
9Your 57-year-old victim and his female partner were both taken to hospital. The injuries suffered by him which are the basis of Charge 2, comprised three fractured ribs, a pneumothorax on his left side, lacerations to his head and a puncture wound to his right arm. He remained in hospital for two days prior to discharging himself. His female partner sustained significant bruising, which is the basis of Charge 3, recklessly causing injury.
10When interviewed by police you gave largely a “no comment” record of interview, which is your legal entitlement. You falsely claimed that you did not have any co-offenders (I here note that police located one metal pole outside the front of the residence and a second metal pole, which had been taken from you, was inside the residence). You stated that you did not think being in the house was “justifiable”. You made reference to your sister having been bullied in high school and the school having been notified about it but did nothing. You did not elaborate further.
11Following your arrest on 5 August 2023, you were remanded in custody. Ten days later, on 15 August 2023, you made a successful bail application. However, on 21 September 2023, your bail was revoked because of further offending by you. You have remained in custody until the present time. At a committal mention on 5 December 2023, the matter proceeded by way of straight hand up brief, with you having indicated an intention to plead guilty to the charges for which I must sentence you.
12You are presently aged 18 years, having been born in May 2005. You come before the Court with no prior criminal history. However, relevant to the assessment of your prospects of rehabilitation, I was informed that, prior in time to the commission of the offending for which I must sentence you, you had been charged with dishonesty offences committed on 18 July 2022, a summary of which was tendered as Exhibit “C”. Also, you had committed offending on 16 October 2022, a summary of which was tendered as Exhibit “D”. This latter offending has apparently resolved on the basis that you are to plead guilty to one charge of unlawful assault. It was this offending for which you were on bail at the time you committed the offences for which I must sentence you.
13Subsequent to the offending for which I must sentence you, on 7 and 8 September 2023, you committed driving offences which resulted in a two car collision. A summary of this offending was tendered as Exhibit “E”. The offending described in that summary was apparently resolved on the basis that the charges relating to what is described as “Incident 1” were to be withdrawn. This offending on 7 and 8 September 2023, which included possession by you of a white powder substance believed to be cocaine, but later tested and found to be lisdexampfetamine, resulted in an application being made to revoke your bail, which was granted on 21 September 2023.
14In a plea on your behalf, Mr Oldham told the Court that the offending for which I must sentence you occurred in the context of you engaging in illicit substance use and suffering compromised mental health, with you having attempted suicide some weeks previously.
15Mr Oldham stated that you were born and raised in Victoria. Your parents separated when you were three years old, following which you lived between two different houses in a context of familial conflict. He submitted that you had been exposed to family violence from a young age, including physical violence and exposure to parental substance abuse. You had also instructed that you had been sexually abused by a family member. However, at present, your relationship with your parents is stable and you maintain a strong relationship with your grandmother, Sally Chisholm.
16Your counsel told the Court that, in your early years at school, you had been bullied due to being overweight and suffered difficulties with concentration, as well as behavioural issues which led to altercations with other students. You left school at the age of 15 years and, subsequently, undertook some employment in concreting and carpentry. However, you had commenced to abuse illicit substances at age 14, and, at age 16, commenced taking methamphetamine, as well as a variety of prescription medications that had not been prescribed for you. Your counsel submitted that, although your substance use had initially commenced for recreational purposes, you became increasingly reliant upon it “as a coping mechanism and a form of self-medication” and found that using lisdexampfetamine made you “feel at ease”. You instructed your counsel that, at the time of the offending for which I must sentence you, you had taken methamphetamine and were experiencing hallucinations and paranoia. I here interpolate that this did not seem to impact upon your consequential thinking skills in that you apparently had some grievance against the 18 year old son of your 57 year old victim and deliberately targeted his home when it was dark and in the early hours of the morning when residents might be expected to still be asleep in bed. You arranged to have someone accompany you there, whilst you were both armed with one metre metal poles. Further, you cut the electricity to the home and apparently had sufficient co-ordination to prise open a partly open window and enter through it.
17Mr Oldham tendered a psychological assessment of you by Ms Rebecca Fakhri, psychologist, embodied in a report dated 2 December 2023[2] and a supplementary report dated 15 February 2024.[3] He relied upon Ms Fakhri’s diagnosis of Sedative, Hypnotic or Anxiolytic Use Disorder (said to be severe, albeit in early remission in a controlled prison environment), Stimulant Use Disorder (said to be severe, albeit in early remission in a controlled environment) and a Complex Post-Traumatic Stress Disorder. When I indicated that Ms Fakhri’s reports did not reveal with any specificity the content of the symptoms said to comprise the Complex Post-Traumatic Stress Disorder, I granted you the opportunity to obtain a supplementary report from Ms Fakhri so that she could make her path of reasoning clear. Accordingly, the matter was adjourned to allow for further plea material to be filed. In the light of your being 18 years old and held on remand in an adult prison, I also ordered that an assessment of your suitability for a Youth Justice Centre Order be conducted and that a report be provided to the Court by 15 March 2024.
[2] Exhibit 1
[3] Exhibit 2
18Ms Fakhri, psychologist, in her report dated 2 December 2023,[4] noted a troubled upbringing, whereby your parents had separated when you were aged three and a history of your alternating between residing at one of their houses, getting “kicked out … and forced to live at the other”, with your mother having twice re-partnered since the separation and your father having re-partnered several times. You described an “on and off” relationship with your father, who would become physically abusive towards you while using methylamphetamine, although, interestingly, you reported that, having being bailed to reside at your father’s address a few months prior to Ms Fakrhi’s assessment on 16 November 2023, an argument ensued, resulting in a Family Violence Intervention Order being taken out against you, with your father as the protected person.
[4]Exhibit 1
19Prior to this time, you had given a history that, at aged 14, your parents “became sick of [your] behaviour”. I note that this coincides with a history of you having begun to drink alcohol frequently and excessively between the ages of 13 and 16, and, by age 14, had begun smoking cannabis because you “liked it”, and also at that age began using MDMA, which you “loved’. However, it would appear that you had unstable accommodation, living with friends or your maternal grandmother and often switching between residing with your mother or father. You had an unstable education, with three different primary schools from Prep to Grade 6, difficulties with concentration and behavioural issues, and were expelled for fighting with other students from one secondary college in Grade 7 and another secondary college in Grade 8, and after transferring to a community school, left school altogether after the commencement of Grade 9. By this stage, you were 15 years old and completed some work in concreting and carpentry roles, and by age 16, substance abuse interfered with your employment.
20Based on your own self-report, Ms Fakhri thought you were “likely” to meet the criteria for a Major Depressive Disorder with moderate symptoms and also “likely” to meet the criteria for a Generalised Anxiety Disorder. However, she went on to note that, based on “self-report, psychometric assessment, clinical presentation at interview and available collateral information” (the nature of which was not identified), she considered you suffered a Complex Post-Traumatic Stress Disorder, Stimulant Use Disorder (severe and in early remission) and Sedative, Hypnotic or Anxiolytic Use Disorder, (severe in early remission). She also considered that your required assessment for possible Attention Deficit Hyperactivity Disorder and neurological assessment related to an alleged concussion.
21Ms Fakhri’s supplementary report, dated 15 February 2024,[5] stated that her diagnostic impression remained unchanged, although what had been a low-to-moderate risk of re-offending, assessed by her in her first report, had been increased to a moderate risk of re-offending, noting an antisocial peer group and a psychopathology which involved increased risk of impulsive and risk-taking behaviour and poor problem-solving skills and self-regulation issues, along with self-medication with substances, which increased your risk. She also considered that your young age and immaturity were relevant factors and that imprisonment was likely to have a negative effect upon your development and mental health, and that, apart from mental health and drug treatment and rehabilitation, you could also benefit from an anger management program.
[5]Exhibit 2
22She had also noted, in her first report, that you disclosed trauma from sexual abuse by a family member (albeit no other details), as well as allegedly having attended hospital in 2002 for a stab wound to your elbow and cut to your face following an alleged attack by four men, as well as physical abuse from your father, but did not give any content to any of the alleged symptoms which you endorsed as comprising those upon which she diagnosed Complex Post-Traumatic Stress Disorder.
23Following the adjourned plea hearing, a second supplementary report from Ms Fakhri, dated 27 February 2024, was provided. She confirmed that you self-reported a history of physical, verbal and sexual abuse throughout your youth, but “… did not delve into [your] trauma symptoms nor the circumstances surrounding the trauma, though stated that [you tend] to avoid thinking about the events altogether, as it results in low moods, hypervigilance and flashbacks. Together, with [your] scores on the International Trauma Questionnaire (ITQ) responses, which displayed heightened scores on the sense of threat, avoidance, and re-experiencing subscales, it was inferred that [you suffer] from Post-Traumatic Stress Disorder (PTSD)”.[6] She considered that your depressive and anxious symptoms were likely a result of this trauma, but exacerbated by your ongoing life difficulties and substance abuse.
[6]Exhibit 3
24It is apparent from this most recent report that Ms Fakhri has limited experience as a forensic psychologist, having apparently completed a one-year internship with a private forensic psychiatry practice prior to being employed as a general psychologist for approximately 10 months with the Ferrari Consulting Group, albeit that she had previously worked in a “counselling space”.[7] It is one thing to simply accept the assertion of a person who is being psychologically assessed and make a diagnosis on the basis of reported symptoms, but quite another to give no content to those symptoms in a forensic context. Moreover, despite noting that you had allegedly received diagnoses of depression and anxiety from mental health professionals since the age of eight and had been prescribed medication to treat your psychological distress,[8] that you had “… most recently engaged with a psychologist six months ago, stating that [you] had 20 weekly sessions with them … mostly based around neglect and abandonment [you] felt from [your] mother, and the abuse [you] suffered from [your father]. … .”; that you had attempted suicide by overdosing on Alprazolam and had run in front of a car three months’ previously; and had also attended hospital in 2022 for an alleged stab wound to your elbow and cut to your face following the physical attack by four men, Ms Fakhri sought absolutely no collateral information to corroborate your assertions.
[7]Exhibit 3, page 5, paragraphs [45]-[46]
[8]Exhibit 1, page 4, paragraph [38]
25It was only after the Court sought clarification that two additional documents were provided. The first was a report by Martin Markus, senior mental health clinician at Melbourne Magistrates’ Court, comprising one page, which noted that you had been registered at an area mental health service, Eastern Health, on 22 August 2023; had not had any acute psychiatric admissions; had no current treatment, but had been given a diagnosis of Post-Traumatic Stress Disorder on 27 September 2023 (but no detail as to who had made it).[9]
[9]Exhibit 4
26The second was a three-page document headed “Form 2 – Initial Report” which was unsigned and undated, but apparently authored by John Cronin, mental health accredited social worker.[10] Your counsel advised that this document had been prepared for the Victims of Crime Assistance Tribunal in support of an application made by you in 2020.
[10]Exhibit 5
27The report apparently authored by Mr Cronin notes that he had started working with you in early January 2018 when you attended the Upper Yarra Secondary School, and you were referred to him because you had anger management and behavioural problems, and told him that you got into non-violent conflict with other students whom you claim bullied your intellectually challenged sister. The author stated that he worked closely with you until you left school in 2019 and went to live with your father, with whom you claimed to have a strained relationship. He noted that, in a counselling session on 27 February 2020, you had mentioned that your mother was finding it difficult to manage you at home due to your attitude and hostility towards her. The author recorded that the alleged act of violence which was the subject of the application to the Victims of Crime Assistance Tribunal had occurred on Boxing Day 2019, when your father attacked you and slapped you in the face, grabbed you by the throat and around the neck, and threw you around the room and pressed you up against the wall, and persisted in trying to strangle you. Photographs were apparently taken of “ligature marks on [your] neck, bruising to [your] face and back” by your grandmother, and you claimed it was not the first time your father had assaulted you, as he would get angry and “would explode in a big way” and, at times, had smashed your DVD player and been physically violent so that you did not feel safe. Yet, he notes that a couple of days after the incident you had returned to live with your father and effectively started lighting papers in your room in order to get a reaction from him, which resulted in him coming into your room, punching you in the face and around the body. There had been another occasion when you failed to return home at an agreed time and, when your father went to pick you up from a mate’s place, he punched you and slapped you in the face.
28A very sympathetic report by the author considered that you had moderate levels of depression, as well as a generalised anxiety disorder, and also presented with symptoms of a Post-Traumatic Stress Disorder linked to the assault on Boxing Day and “exacerbated (sic) by previous assaults”. Interestingly, the author made no mention whatsoever of substance abuse by you. Nor did he record any history of alleged sexual abuse of you. He stated that you and he had developed a strong therapeutic relationship and he was confident that you could keep working towards improving your general wellbeing, albeit that you had a long road ahead to your recovery. However, the last date mentioned in that report is 5 March 2020. It remains unexplained why you did not continue to engage with the author for treatment if you had such a good rapport with him. It is not known whether the author is the psychologist whom you told Ms Fakhri you had last engaged with six months prior to seeing her on 16 November 2023, but “ceased attendance as it was ‘too inconvenient’ to continue to attend sessions weekly”. In these circumstances, it does not sit well with Ms Fakhri’s report that you displayed relatively-good insight and judgement at the time of her assessment, and that you were motivated to continue to engage in treatment.
29In response to the Court’s request, a report was provided by the Department of Justice and Community Safety authored by Ms Amelia Catchlove and Ms Soula Kontonichalos dated 27 March 2024.[11] It is of some concern that this records that you felt yourself justified in having committed the offence against the 18 year old son of your victim against whom you had a grudge, having alleged that he had bullied your sister at school. The authors of the report assessed that your offending was preplanned and motivated by your desire to enforce your own sense of morality through violence rather than appropriate law enforcement channels. They considered that your substance use, combined with your vigilante attitude and anger towards the 18 year old son of your victim had potential for serious injuries for the victims. Your inability for victim empathy was noted to be a concern, as was the presence of Intervention Orders against affected family members, namely, your mother, stepfather and father, towards whom you were assessed at holding resentment due to your traumatic childhood.
[11]Exhibit “F”
30The report found you to satisfy the criteria in s32(1)(b) Sentencing Act, namely, that you are particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison. In this regard, it noted that your immaturity, limited consequential thinking and substance affective state were all factors in your offending and that your prospects of rehabilitation are dependant upon your ability not to resort to violence for problem solving. The report noted a number of incidents which have taken place whilst in adult prison. Whilst characterised as generally being of minor nature, it was stated that a number of the incidents took place in the presence of other prisoners and, in one incident on 12 November 2023, you were one of five inmates who apparently entered the cell of another to assault him, and in an incident on 21 January 2024 had apparently been encouraged by other inmates. Following the latter incident you refused to take responsibility and, when advised that you would be moved to a medium security location, you made threats that you would do whatever it took to jeopardise your placement so you could be placed in a maximum security location.
31The report also concluded that the criterion pursuant to s32(1)(a) of the Sentencing Act was satisfied in your case in that you had reasonable prospects or rehabilitation. It noted that, notwithstanding your fractured relationship with your immediate family following your described childhood of parental substance abuse, domestic violence, neglect and inappropriate discipline, you maintained a relationship with your maternal grandmother at whose home you had lived in the past. Moreover, notwithstanding your disrupted education and unstable housing and limited employment history, whilst on remand you had completed a Microbusiness Course, a Certificate III in Entrepreneurship, and a Hospitality Course. You had also been working as a factory hand and were on the waitlist for a construction course. The authors of the report considered that this showed a commitment to better yourself and enhance your skills.
32The report recorded a history that you commenced drinking alcohol at the age of 13 and then experimented with illicit with drugs from age 14, and had a history of alleged self-harm. It noted your mental health conditions which had been described by Ms Fakhri as Complex Post-Traumatic Stress Disorder, stimulant use disorder and sedative/hypnotic/anxiolytic use disorder, as well as a provisional diagnosis of Attention Deficit Hyperactivity Disorder. It noted, that although you apparently have a history of not being responsible about addressing mental health issues, you had engaged with mental health staff on remand and appear to be motivated to address the factors that led to your antisocial behaviour. In particular, the report noted that you had not previously been given the opportunity to engage in offence-specific intervention in relation to your use of violence and your antisocial attitudes. The report considered that it would be imperative that a dual approach be taken to address your substance use and the interrelationship with your mental health diagnosis.
33For these reasons you were found to be suitable for a Youth Justice Centre Order and the report noted that, if you were to be sentenced to such an order, Youth Justice would seek to assess your functioning, including the provisional diagnosis of Attention Deficit Hyperactivity Disorder.
34Mr McKinley, you should be in no doubt as to the seriousness of your offending. Every person in our community has the right to feel safe in their own home. Your offending was a grave violation of that right. I have found that it was premeditated and was some sort of vengeance for a perceived wrong that the 18-year-old son of your primary victim had allegedly committed. No one in our society has the right to take the law into his own hands. You did so in a way that struck at the heart of the security of all four members of the household in a vicious way. Although you purport to express remorse for your primary victim, it is worrying that even in your most recent account to the authors of the pre-sentence report assessing you for suitability for a Youth Justice Centre Order, you actually traversed the agreed facts in the prosecution opening in a number of respects and stated that you consider the victim’s account was “bullshit”.[12]
[12]Exhibit “F”, page 3
35To have two young men attack a 57-year-old in the privacy of his own home, in the early hours of the morning, when most people would be expected to be either sleeping or just getting up, is cowardly and sickening. You in no way distanced yourself from the cowardly behaviour of your co‑accused in attacking your primary victim’s female partner, and did not desist from your violent purpose even when the 8-year-old son of your primary victim woke up. The fight continued in a protracted way throughout the house until you were eventually overpowered in the bathroom. Indeed, neighbours came to help hold you down until the police arrived. It is an aggravating feature of your offences that you were on bail at the time you committed them.
36In his Victim Impact Statement, your primary victim speaks of the erosion of his sense of security both at home and in the neighbourhood, and the adverse impacts upon his sleep, capacity to work, and even to go out in a carefree way to play locally with his younger son. He has incurred a loss of income through not being able to work, at all, in his physically-demanding job for an extended period of time, and, subsequently, to a lesser extent than before your attack upon him. He has incurred further financial loss in relation to medical and like expenses and the need to implement security measures at his home. At the time of making his Victim Impact Statement on 17 February 2024[13] your primary victim stated that he was still struggling with physical, emotional, and social concerns, and trying to work out whether or not to go through the expense and stress of moving from his home. All of these are foreseeable and understandable consequences of your grossly anti-social violent behaviour.
[13]Exhibit “B”
37In sentencing for this offending, the Court must denounce your conduct, and, generally speaking, the primary sentencing consideration will be that of general deterrence, so that others who are minded to exact revenge for perceived grievances by entering others’ homes and assaulting them will know that this conduct will not be tolerated and will be met with appropriate punishment. This is a serious example of the offence of home invasion. It was planned, motivated by revenge and accompanied by sickening violence. There can be no doubt that the only appropriate sentence to reflect the totality of your offending is the sentence of last resort involving deprivation of your liberty. Indeed, Charge 1 is a Category 2 offence and parliament has mandated that a court must impose a custodial sentence unless one of the exceptions in s5(2H) of the Sentencing Act has been made out. Your counsel made no submission that any of the exceptions apply in your case.
38In sentencing you, I accept that you have had a dysfunctional and neglected childhood during which you were exposed to violence, and that the impact of that can be enduring[14] (although the nature and extent of any sexual abuse is unclear). I take into account that such childhood deprivation reduces to an extent your moral culpability. Further, I accept that you do have a number of mental health conditions, although your counsel did not seek to argue that they reduced your moral culpability in accordance with limb 1 of R vVerdins,[15] and conceded that limb 2 had no application. However, I do accept that, in particular, having a Complex Post-Traumatic Stress Disorder is likely to make the serving of a term in custody more onerous for you than for other offenders who do not have such a condition in accordance with limb 5 of Verdins. The impact of any mental health condition is somewhat difficult to discern in the light of your heavy substance abuse from an early age, but I take the latter into account as part of your general circumstances. Such abuse may well have impacted on crucial neurodevelopment and, coupled with your disrupted education of limited duration and the lack of appropriate role models and nurturing, be another contributing factor to your immaturity. Hence, my finding of some reduced moral culpability in accordance with the principles in Bugmy.
[14]Bugmy v The Queen [2013] HCA 37.
[15] [2007] 16 VR 269.
39In sentencing you, I take into account that you have no prior convictions, although you have a number of outstanding matters in the Magistrates’ Court which are yet to be finalised. I make it plain that I have no role in sentencing you for those outstanding matters, although the conduct involved in those offences causes me concern as to your prospects of rehabilitation because they demonstrate in various ways a lack of emotional regulation and a propensity for anger, violence and anti-social behaviour. Such traits are enhanced by illicit drug use, and I note that Ms Fakhir assesses you to be at moderate risk of reoffending. The extent to which that risk can be reduced depends upon your motivation and commitment to engage in rehabilitative treatment.
40At this stage, I consider your prospects of rehabilitation to be guarded. However, I am very conscious of your young age, not yet 19 years, and it has long been held that, when sentencing young offenders, generally speaking, the predominant sentencing principle should be that of rehabilitation.[16] In this regard it is of some significance that you have not previously had the benefit of rehabilitative programs which are clearly much needed to address your anger, trauma from childhood, limited education, mental health issues, significant history of polysubstance abuse, and an attitude of hubris (meaning arrogance) and not fully taking responsibility for your actions. It is always of concern to a court that someone of your age should have been held in an adult prison, and I accept that you have been apparently involved in a number of incidents where adult prisoners have also been involved and encouraged you in your anti-social behaviour. I consider it undesirable that a person with your immaturity and other issues should be held in an adult prison, which is only likely to increase your risk of reoffending, particularly if appropriate treatment programs dealing with your dual diagnosis of Complex PTSD and substance abuse are not readily available. In sentencing you I acknowledge that, for an 18 year old to have spent almost 8 months in an adult prison on remand as a first custodial sentence, is a matter of some significance.
[16] R v Mills [1998] 4 VR 235.
41In all of the circumstances, I accept the content of the pre-sentence report assessing you as suitable for a Youth Justice Order. I do regard you as immature or likely to be the subject of undesirable offences in an adult prison, and, although I have been guarded in relation to your prospects of rehabilitation, I consider that it is in the interests of your rehabilitation and in the best interests of the community that you be given the benefit of mental health assessment and treatment, offence-specific intervention, substance abuse treatment, and assistance with further education and employment training in a Youth Justice Centre setting.
42In arriving at the overall sentence to be imposed I have taken into account the utilitarian value of your pleas of guilty which entitle you to a discount on the sentence which otherwise would have been imposed, even though I consider you to have limited remorse for your appalling offending.
43Thus, notwithstanding the objective gravity of your offending, I consider it appropriate in all the circumstances of this case, having regard to the nature of the offending and your age, character and past history, to sentence you to a Youth Justice Centre order pursuant to s32 of the Sentencing Act.
44As I am satisfied pursuant to s32A(1)(b) that charges 1, 2 and 3 on the indictment form, or are part of, a series of offences of the same or a similar character, and, indeed, all were committed on the one day in question, I propose to order one aggregate sentence in respect of those three offences, rather than assigning a separate sentence in relation to each of them.
45In relation to Charge 1, home invasion, I note that this is a “category B serious youth offence” pursuant to paragraph (d) of the definition in s3 of the Sentencing Act. However, as you have not previously been convicted of another offence that is either a “category A serious youth offence or a category B serious youth offence”, it is not necessary for this Court to be satisfied that exceptional circumstances exist before being able to make a Youth Justice Centre order.
46In relation to summary charge 8, committing an indictable offence whilst on bail, s16(1A)(e) of the Sentencing Act removes the presumption of concurrency in s16(1) in circumstances where a term of imprisonment is imposed. However, taking into account all of the circumstances of your case and the principle of totality, I cannot be satisfied that for this summary offence, alone, a sentence of last resort, whether it be a term of imprisonment or a term of detention in a Youth Justice Centre, is justified, and I consider a fine to be the appropriate sentencing disposition.
47On Charge 1, home invasion, Charge 2, intentionally causing injury, Charge 3, recklessly causing injury, you are convicted and sentenced to an aggregate sentence of detention of 3 years and 6 months in a Youth Justice Centre.
48Pursuant to s35, I declare a period of pre-sentence imprisonment of 221 days to be time reckoned as already served under the period of detention imposed this day.
49On summary charge 8, committing an indictable offence whilst on bail, you are convicted and sentenced to pay a fine of $200.
50Mr McKinley, the issue of parole is a matter for the Youth Parole Board, not this Court. I urge you to take advantage of any courses of treatment, education and training made available to you during your period in youth detention, as that is most likely to assist you in your rehabilitation. If you don’t engage with it, your situation is unlikely to improve as you will go on committing criminal offences and being a menace to society and your life will be a miserable and wasted one. Bear in mind that, if you do not behave in the Youth Justice Centre, there are powers to have you transferred from there to an adult prison.
51Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed this day on Charges 1, 2 and 3 would have been an aggregate sentence of imprisonment of five years with a non-parole period of 2½ years.
52On Charge 1, home invasion, I order pursuant to s 78(1) Confiscation Act 1997 (Vic) that two metal poles be forfeited to the State and I further direct that they be placed in the custody of the Chief Commissioner of Police, and held by him until 28 days from this date, or, the conclusion of any appeal proceedings where they may be tested and/or analysed, and then destroyed.
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