Director of Public Prosecutions v McKinley
[2019] VCC 2011
•3 December 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-19-01342
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARREN McKINLEY |
JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 November 2019 | |
DATE OF SENTENCE: | 3 December 2019 | |
CASE MAY BE CITED AS: | DPP v McKinley | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2011 | |
REASONS FOR SENTENCE
---
Catchwords: Sentence – aggravated burglary, common assault and contravention of a personal safety intervention order – daytime offending at a private residence – previous animosity felt by offender towards victim – element of planning - offender acted alone after consuming alcohol – forced entry by breaking window but no weapon involved – brief assault on male victim by means of punching and grabbing neck – limited admissions and significant denials in police interview - early plea of guilty – limited remorse - offender aged 48 at time of offending and 49 when sentenced – limited criminal history but no prior violence related offending – 113 days pre-sentence detention then released on CISP bail – positive efforts towards rehabilitation while on bail - reasonable prospects of rehabilitation – convicted and sentenced to a combination sentence of 113 days’ imprisonment with a 2 year community correction order for indictable offences and convicted and fined $500 for summary contravention offence – s.6AAA indication of 2 ½ years’ imprisonment with a non-parole period of 18 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms J. McGarvie | Office of Public Prosecutions |
| For the Accused | Ms J. Willard | Greg Thomas |
VICTORIAN GOVERNMENT REPORTING SERVICE
215671
HIS HONOUR:
Introduction
1 Darren McKinley, the two charge indictment to which you have pleaded guilty, contains one charge of aggravated burglary and one charge of common assault.[1] The maximum penalty for those offences are 25 years and five years’ imprisonment, respectively.
[1] Charges 1 and 2 on indictment J12141117, respectively.
2 You also consented to this court hearing the uplifted related summary offence of contravene Personal Safety Intervention Order and pleaded guilty to that charge, which carries a maximum penalty of two years’ imprisonment or a fine of 240 penalty units.
3 The circumstances in which you came to commit those offences are set out in the detailed typed prosecution opening dated 24 October 2019,[2] to which I have had regard when determining the appropriate sentence in this case. For present purposes, the following briefer outline will suffice.
Circumstances of the offending
[2] Exhibit A on the plea.
4 First, by way of brief introduction, I note the following. The victim in this matter was your former housemate, a man named Raymond Jeffrey. At the relevant time in February 2018, the two of you shared a house and you had a pet dog named “Snoop”. On 16 February 2018, while both you and Mr Jeffrey were at home in Boronia, your dog bit Mr Jeffrey several times on his leg and right arm. After he reported the incident to the authorities, the Knox City Council seized your dog and the police applied for a Personal Safety Intervention Order to protect Mr Jeffrey from you. Mr Jeffrey moved out shortly after the dog was seized. A final Personal Safety Intervention Order was issued by the Ringwood Magistrates’ Court on 13 June 2018, a copy of which was personally served on you on 22 July. That 12 month order prohibited you from assaulting, threatening, or damaging any property of the protected person, Mr Jeffrey.
5 The offending for which you now fall to be sentenced, took place on Tuesday 14 August 2018, at approximately 2.20 pm. At that time,
Mr Jeffrey was in the lounge room of his home and his female housemate Ms McDonald was in her bedroom.
6 You attended at the property and began to bang loudly on the front door, while screaming at Mr Jeffrey 'I’m going to get you, you cunt. I’m going to kill ya'. He recognised your voice immediately and moved towards the front door. He then saw you kicking the door, as a result of which, the deadlock was damaged. He also heard items bouncing off the adjacent windows. As you continued to yell threats at him, Mr Jeffrey armed himself with a wooden shelf, in order to protect himself. Almost immediately he changed his mind and discarded the shelf, choosing instead to call ‘000’. The phone remained connected to the 000 operator during the offending incident.
7 You used a piece of timber to smash the bottom window next to the front door and then climbed through the opening. That forced entry to
Mr Jeffrey’s home forms the factual basis of the offence alleged in Charge 1, aggravated burglary. As is clear from the wording of that charge and your plea to it, such entry was effected with the intent of assaulting Mr Jeffrey while, at the very least, being reckless as to his presence inside.
8 Once inside, you ran towards Mr Jeffrey in the lounge room while repeatedly screaming 'I’m going to kill ya, I’m gonna kill ya'. You charged at him, causing him to fall. A struggle then ensued during which you punched him more than once and grabbed his neck. He fought back and grabbed you and used a chair in an attempt to defend himself. You then punched him again. When he then told you that the police were on their way, you left. It is your assault of Mr Jeffrey in all of those circumstances that forms the factual foundation for the offence alleged in Charge 2, common assault.
9 Ms McDonald remained in her bedroom during the entirety of the incident. She rang 000 when she heard the sound of smashing glass.
10 As your assault of Mr Jeffrey also constituted ‘prohibited conduct’ under the Personal Safety Intervention Order issued just one month earlier, you also fall to be sentenced for the related summary offence of contravention of a Personal Safety Intervention Order.
Arrest and Interview
11 At approximately 2.30 pm, police attended and examined the scene and took statements from Mr Jeffrey and Ms McDonald.
12 At approximately 2.45 pm, you were located and arrested by police in the car park of a nearby McDonald’s store. You were then taken to Boronia police station and formally interviewed. Essentially, what you told the police, was the following. You admitted to having attended
Mr Jeffrey’s home, but claimed that you did so in order to ask him not to press charges against your dog. You denied entering the house at all, let alone by force. Instead, you claimed to have merely knocked on the front door and then left when Mr Jeffrey said he was going to call the police. You were clearly still in an agitated and angry frame of mind when being interviewed, because you described the victim as ‘a piece of fucking shit’ and as ‘a cunt’ and you told police that rather than leaving the victim at his home as you had done, you wished you had killed him instead. You admitted to knowledge of the existence and conditions of the Personal Safety Intervention Order. When questioned about the presence of cuts on your hands, you told police that you are prone to get upset with people and things on occasion and when you lose your temper, you just hit things. You then explained that you received the cuts when you hit a fence the previous night.
Charged and remanded
13 Following that interview, you were charged and remanded in custody in relation to this matter.
CISP Bail
14 On 5 December 2018, you were bailed onto the CISP program.
Pre-sentence detention
15 Accordingly, there is a total period of 113 days of pre-sentence detention in respect of this matter, which period will be formally declared as having already been served, later in these sentencing reasons.
Guilty plea
16 This matter resolved to a guilty plea prior to the commencement of the committal and without the need to cross-examine any witnesses.
Gravity of the offending
17 The offences charged in this indictment are clearly serious, in particular, that of aggravated burglary for which Parliament has seen fit to fix the very high maximum penalty of 25 years’ imprisonment.
18 The serious aspects of that offence include the following. It related to a private home and entry was gained by force in frightening circumstances when you were in a highly agitated and angry frame of mind. Your intention was to assault the male occupant of that home. Your offending involved a degree of pre-mediation and involved an element of retribution or punishment for Mr Jeffrey reporting your dog to the authorities. I have no doubt that you were already aware that your victim, Mr Jeffrey, was frightened of you. I am also satisfied that you were reckless as regards to whether Ms McDonald was also present inside the house. An aggravating feature of this offence, as for that of common assault, is that it was committed shortly after a court attempted to protect Mr Jeffrey from you by means of a Personal Safety Intervention Order.
19 All of that said, your offence is to be distinguished from the more serious types of confrontational aggravated burglary that come before the courts. For example, it was not committed at night, or in company, or while armed.
20 The common assault offence involved separate and distinct criminality on your part, taking place, as it did, after the aggravated burglary offence had been completed (on entry). In addition to wrestling with the victim, you grabbed his neck and threw multiple punches. It is through sheer good fortune that he was not injured.
Context of and reason for offending
21 Quite properly, whilst your counsel sought to provide the full context and explanation for your offending, she did not seek to excuse or justify it. You were clearly going through a difficult period in your life at the relevant time.
22 In 2015, your long term relationship ended, as did your contact with your son (aged 15 at the time) and daughter (aged 13 at the time). From that time, your ten-year-old dog provided the only real emotional connection in your life.
23 You and Mr Jeffrey had been friends for approximately seven years and house-mates for the last two of those years. You continue to maintain that Mr Jeffrey had antagonized your dog on a number of occasions before the biting incident, which itself occurred in response to a verbal argument over money.
24 By August 2018, your dog had been impounded for approximately six months. You were vehemently opposing any attempt by the Council to destroy your dog and were intending to rely on a defence to the effect that your dog had only bitten the victim because he had previously ‘teased, abused or assaulted’ the dog. Thus, you were angry at
Mr Jeffrey for what you perceived to be his provocation of your dog and subsequent failure to mention it to the authorities.
25 In the hours before you attended at his home, you appear to have been drinking alcohol and festering about the perceived injustice of the situation. Ultimately, you made a very unwise decision to go and confront him about the matter.
Personal circumstances
26 I will now outline your personal circumstances, Mr McKinley. You were 48 years of age at the time you engaged in this offending. You are now 49, having been born on 8 November 1969. Along with your seven siblings, you were raised by your parents in Gembrook.
27 You always struggled at school and are functionally illiterate. Your full scale IQ has been assessed as 84 by the psychologist, Dr Cunningham, which places your cognitive functioning in the ‘Low Average’ Range.
28 You left school and your family home at the very young age of 14. You then managed to obtain work at a nursery and then as a truck jockey. You then worked as a boilermaker for 25 years until 2015.
29 At the age of 30, you purchased a house and lived with your partner of many years, Rebecca. That long term relationship ended in about 2014/15. It produced two children, a son now aged 20 and a daughter now aged 18. Initially, custody of those two children was shared but then they went to live with their maternal grandmother, who ended up taking out an intervention order against you. You have not seen your children since, a matter that continues to cause you considerable distress.
30 You have struggled since the separation; you have failed to hold down any full time employment and commenced intravenous use of methamphetamine.
31 On eventually being bailed for these charges, you positively engaged in the CISP Program for approximately seven months, until being successfully exited from that program. You attended 13 out of 14 case management interviews, attended all scheduled medical appointments and successfully completed an episode of drug and alcohol counselling with a health clinician. You benefited from your positive engagement in the program, and from your focus on your own health, especially by giving up drugs.
Matters in mitigation
32 The matters in mitigation relied on by your counsel include the following.
33 You made some limited admissions in the police interview.
34 You entered an early plea of guilty to these charges. That has saved the community from the time and cost associated with a trial and spared the victims, in particular Mr Jeffrey, from the ordeal of giving evidence. By pleading as and when you did, you have facilitated the course of justice, taken personal responsibility for your actions and demonstrated some remorse.
35 However, I remain concerned that you may harbour some residual animosity towards the victim for what you perceive to be his responsibility for setting in train the events that led to your dog’s destruction by the Council while you were on remand for this matter. Those concerns were only reinforced when I read the community correction order assessment outcome report, in which it is recorded that you told the assessor that while you acknowledge handling the situation with Mr Jeffrey badly, you still see him as partly responsible for what occurred.[3]
[3] See page 2.6 of the Report dated 5 December 2019.
36 In all of those circumstances, I am of the view that you are entitled to a relatively significant discount in your sentence, the extent of which will be made clear later in these sentencing reasons.
37 You performed very well while on the CISP Program. You have also continued on that positive course since being exited from the program. You have not used drugs or reoffended. That all suggests that you are serious about addressing your issues and achieving long term rehabilitation.
38 This offending appears to have been somewhat of an aberration on your part, given its nature and level of seriousness. Whilst you have a limited and relevant criminal history, including a recent conviction for burglary, it does not include any violence related offending. Up until your remand for this matter, you had never experienced being in custody before.
39 The circumstances surrounding the commission of these offences were unusual and, in my view, unlikely to be repeated, particularly given the deterrent effect of your subsequent remand, which I am prepared to accept has already achieved a measure of personal deterrence in your case.
40 Whilst you do not meet the criteria for an intellectual disability, your relatively low IQ places you in the borderline intellectual functioning range.
41 Your counsel submitted that this court should conclude that your prospects of rehabilitation are very good given your age, limited criminal history, strong work history until 2015, the particular context of your offending and its brief duration, the positive efforts you have made whilst on bail, such as engagement in the CISP Program and success in remaining drug and offence free.
Relevant sentencing principles
42 General deterrence and denunciation are important sentencing considerations in this case. Offending such as this is unfortunately prevalent. It seriously undermines the sense of security of those affected and needs to be strongly discouraged and condemned. The sentence to be imposed here must play some role in deterring others in the community who are minded to commit similar offences from doing so. On behalf of the community, this court must make clear that such conduct is totally unacceptable.
43 This offending was troubling indeed and involved some degree of planning. There remains, in my view, a need to effect some measure of personal deterrence on Mr McKinley, notwithstanding his limited criminal history and lack of any subsequent offending. He must clearly understand that the consequences for him behaving in this or any similar manner in the future will be very serious.
44 This court must impose a just punishment for this offending. What is just must be informed by both the circumstances of the offending and of the offender.
45 The totality principle is relevant given the fact that this was a single episode of offending which occurred over a relatively short period. That said, it must also be acknowledged that each of the offences involves a separate and distinct measure of criminality, which must be reflected in the overall level of punishment imposed in this case. Ultimately, the total punishment imposed must be commensurate with the totality of the offending, no more and no less.
46 This court must be careful not to doubly punish Mr McKinley given that the conduct relied on for the offence of common assault is the very same conduct that is relied on as ‘prohibited conduct’, for the purposes of the related summary offence of contravene a personal safety intervention order. As I have treated the fact that the two indictable offences were aggravated by being on a Personal Safety Intervention Order at the time, there is a need to limit the conduct for which Mr McKinley is to be sentenced for the related summary offence to the failure by him to respect and comply with the court’s order of 13 July 2018.
47 Finally, this court must have regard to Mr McKinley’s age and prospects of rehabilitation. He is a man of mature years with a good work history and some supporters in the community. Whilst he does have a relevant criminal history, it is limited in scope. All relevant matters considered, I have concluded that his prospects of rehabilitation are reasonable. They would likely be enhanced if he remains drug and alcohol free and engages positively with any treatment and counselling he is offered in the near future.
Sentencing submissions
48 Mr McKinley, your counsel submitted that the appropriate penalty in this case was a combination sentence, that is, a sentence of imprisonment restricted to the time that you have served on remand to date in combination with a suitably lengthy and conditioned community correction order. Such a disposition would, she argued, be capable of satisfying both the punitive and therapeutic requirements of any sentence and would achieve the necessary balance between all of the relevant and, in some respects, competing sentencing considerations.
49 For their part, the prosecution acknowledged that notwithstanding the seriousness of this offending and the corresponding need to emphasise general deterrence, a combination sentence of the type sought by the defence would not be outside the range of sentences open in this case.
Analysis
50 I have listened carefully to the submissions made by each of the parties in this case and given the question of penalty very careful consideration. The offending in which Mr McKinley chose to engage on this occasion was troubling and quite serious. Whilst my initial inclination was to consider imposing a wholly immediate sentence of imprisonment, significantly greater than the period that Mr McKinley had previously spent on remand, I have ultimately been persuaded to take a different and more lenient course. It was not an easy decision, but one I ultimately consider to be appropriate in all of the circumstances of this case.
Sentence
51 Accordingly, after having carefully considered, balanced and weighed the various sentencing considerations raised by this case, I have decided to sentence Mr McKinley to a combination sentence as follows.
52 In respect to the two indictable charges on the indictment, Mr McKinley will be convicted and sentenced to an aggregate term of 113 days’ imprisonment, in combination with a community correction order in the following terms, providing he consents to being placed on such an order.
53 The order will be with conviction and for a period of two years. As well as the mandatory core conditions which are attached to every community correction order, it will have the following additional conditions for the duration of the order.
54 He will be required to perform 200 hours of unpaid community work;
55 He will be required to be under the supervision of a community corrections officer;
56 He will have to undergo assessment, treatment and rehabilitation in relation to drug abuse or dependency, as directed;
57 He will have to undergo assessment, treatment and rehabilitation in relation to alcohol abuse or dependency, as directed; and
58 He will have to participate in courses and/or programs that address factors relating to his offending behaviour as directed, including an anger management program.
59 On the related summary charge of contravene a Personal Safety Intervention Order, he will be convicted and fined the sum of $500.
60 Counsel, I propose to leave the Bench in a moment to allow my associate to provide the parties with a copy of the proposed community correction order for checking. Ms Willard, could you also take the opportunity to ensure that your client fully understands all of the conditions of the proposed order and the potential consequences for him if he were to breach it.
61 MS WILLARD: Absolutely, your Honour.
62 HIS HONOUR: Counsel can let my associate know when you are ready to resume. I will then return to the Bench and ask both counsel whether the order is in terms that gives effect to my stated intentions, and I will then enquire of defence counsel whether her client understands and consents to being placed on such an order.
(Short adjournment.)
63 HIS HONOUR: Counsel, does the wording of the proposed order give effect to my stated intentions?
64 MS McGARVIE: Yes it does, Your Honour.
65 MS WILLARD: Yes, Your Honour, and I've explained the consequences to Mr McKinley of any breach.
66 HIS HONOUR: Thank you. Does he consent to being placed on such an order and agree to be bound by all of its conditions?
67 MS WILLARD: Yes, Your Honour.
68 HIS HONOUR: Thank you, Ms Willard.
69 MS WILLARD: Thank you, Your Honour.
70 HIS HONOUR: Mr McKinley, would you stand up please. Having had the conditions of the proposed community correction order explained to you, are you prepared to be placed on such an order and to be bound by all of its conditions?
71 OFFENDER: Yes, Your Honour.
72 HIS HONOUR: Let me just explain something to you, Mr McKinley. I am not suggesting that this will occur, but you need to understand it. If you were to breach this community correction order in any way, including by the commission of any other offence while on the order, you could be charged with and sentenced for the additional offence of contravening the community correction order, an offence which carries a maximum penalty of three months' imprisonment. You could also be sentenced afresh for the current offences of aggravated burglary and common assault. In such circumstances, you would face the very real prospect of being sent back to gaol. Do you understand that?
73 OFFENDER: Yes.
74 HIS HONOUR: Very well. Mr McKinley, I will now ask you to sign the order. For that purpose, you can come out of the dock and stand beside your counsel at the Bar Table. Is that your signature on that order Mr McKinley?
75 OFFENDER: Yes.
76 HIS HONOUR: Very well. I have also signed that order and it is now in effect. Please do not leave the courtroom before getting your own copy of that order, Mr McKinley.
Pre-sentence detention
77 The period of 113 days’ pre-sentence detention is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the records of the court.
Section 6AAA declaration
78 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that had
Mr McKinley pleaded not guilty to the charges for which he has been sentenced in part to imprisonment today, he would have been sentenced for those offences to a total effective sentence of two and a half years with a non-parole period of 18 months.
Other Matters
79 Counsel, are there any matters that either of you wish to raise at this stage in respect of either the sentence or sentencing reasons?
80 MS WILLARD: No, Your Honour.
81 MS McGARVIE: No, Your Honour.
82 HIS HONOUR: Mr McKinley can I just say some brief things at this stage. This case perhaps shows how unwise it is to take the law into your own hands, rather than go through more appropriate channels to redress any issues that you have got. I am sure you have learnt that lesson. Your future is essentially in your own hands now. Providing you do everything you need to under this community correction order, then that will be the end of this case. You will not have to come back to court and you can just get on with your life. Do you understand that?
83 OFFENDER: Yes sir.
84 HIS HONOUR: Now I read in the community correction assessment report that you are very keen to get a job and to continue on with some fulltime employment. Now that is a good aspiration to have, but let me just sound a warning to you. Often people come back for contravening their community correction order because they give priority to their employment, rather than getting through the community correction order. I will say one thing in relation to that. You cannot have a job if you are back in gaol, all right? So treat the community correction order with the priority it deserves, all right?
85 OFFENDER: Yep.
86 HIS HONOUR: All right. Thank you counsel.
- - -
0
0
0