Director of Public Prosecutions v McKinnin

[2018] VCC 1146

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01973

DIRECTOR OF PUBLIC PROSECUTIONS

v

HARLEY McKINNIN
MICHAEL McKINNIN

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATES OF HEARING:	23 June to 4 May 2018
DATE OF SENTENCE:	1 June 2018
CASE MAY BE CITED AS:	DPP v McKinnin & Anor
MEDIUM NEUTRAL CITATION:	[2018] VCC 1146

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Regan	OPP
For Accused McKinnin	Ms S. Lacy	Stary Norton Halphen
For Accused McKinnin	Ms E. Tueno	Michael Brugman Criminal Lawyers

HIS HONOUR: 

1Michael James McKinnin and Harley Michael James McKinnin, you have both been convicted by a jury of one charge of causing serious injury recklessly. 

2The facts of your offending are: - On Friday 24 March 2017 you were both at premises where you lived in The Esplanade, North Shore.  At about 11 pm you, Harley McKinnin, saw a group of young people interfering with the shell of a motor vehicle stored outside your premises.  You yelled at the young persons and they ran away.  You, Harley, chased after them. 

3Subsequently both of you got into a Holden Astra sedan and pursued the young people through the nearby streets.  They ran down Seaside Parade and towards the premises of Pindarri Poultry.  At those premises staff were holding drinks and celebrating.  Some of the young people sought shelter at those premises. 

4The owner of the poultry factory, Gavin Broad, went out into the street to see what was happening.  You pulled the Astra up next to him, you both got out carrying baseball bats.  One of you struck Broad to the body, knocking the wind out of him.  He was then struck to the left side of the head, knocking him to the ground.  Once he was on the ground you both repeatedly struck him to the body and legs.  Your savage attack only ceased when another factory employee, Leah Boxshall, rammed her car into the Astra to distract you from your assault on Mr Broad.  You both ran back to the Astra and drove back to your premises.

5Police and ambulance were called.  Mr Broad was taken to hospital, where he remained for some four days.  He sustained a complex left cheekbone fracture, it was shattered in three parts, and extensive bruises.  He had two fractured ribs with underlying lung injury; he had a large bruise to his upper and lower back and left upper abdominal tenderness; he had a spiral fracture of his right fibula, and a complex right ankle fracture with ligament involvement resulting in instability of the ankle joint.

6You were both arrested on 29 March and interviewed by police.  You both lied in those interviews.  The jury rejected each of your stories beyond reasonable doubt.  Essentially you both maintained that you were attacked and acted in self-defence.  You both denied hitting Mr Broad with baseball bats.

7The prosecution case was that you were both acting pursuant to a joint arrangement to attack Mr Broad.  The jury acquitted you both of intentionally causing serious injury but convicted you, as I said, of recklessly causing serious injury.  It is clear that your attack on Mr Broad was vicious, unprovoked and planned, albeit only shortly before it occurred.  It was not of lengthy duration.  Its consequences were, however, severe and long-lasting. 

8Mr Broad filed a victim impact statement, Exhibit A upon the plea, in which he says as a result of your assault upon him he has lost his independence, has to be driven everywhere and feels insecure at his place of work.  He describes the fracture that he sustained to the top of his mouth where his teeth were moved and he required dental work to repair.  He says he was bleeding from the left ear and had fractured ribs.  He has had three surgeries on his foot and ongoing rehabilitation, and requires pain medication.  He says 14 months since the incident he is still limping and is only able to stand up for a short period of time.  He has been informed that his injury will never fully recover.  He cannot sustain activities that require him to be on his feet and he has been unable to work since he was injured.  He is told by his surgeon that he cannot work on wet surfaces and he does not see himself able to return to work.  Obviously this has caused him significant financial expense.  He feels anxious in public and watches out for people around him.  I take the contents of that victim impact statement into account in sentencing you.  

9Leah Boxshall and Ms Ryan both filed victim impact statements describing the effect of observing your attack on Mr Broad.  Leah Boxshall says that the date of 24 March will be horrifically etched in her mind forever and has affected her by the vicious and random assault at her place of work.  She says that she has devastating, ongoing effects that emotionally, financially, psychologically and socially affect her.  She truly believed that she was watching Gavin being killed.  She has emotional issues and sets out in her victim impact statement the way they have impinged upon her work and her inability to go back to the place where this occurred.

10Emma Ryan similarly was horrified by watching what occurred to her employer. Watching images of seeing Gavin being hit with a baseball bat over and over and over were intense, and, "When I close my eyes it's hard to get to sleep at night having flashbacks to the event".  I take the contents of those victim impact statements into account in sentencing you.

11Both of you have admitted criminal records.  You, Michael McKinnin, have a limited criminal record.  In 1993 you received a bond for the offence of making a false document to the prejudice of another and using that false document.  You have convictions in 2003 for driving whilst disqualified and using an unregistered motor vehicle; in 2004 for unlawfully on the premises; and also for dealing with property suspected of being the proceeds of crime.  You have no prior convictions for violence.  Your history is in my view irrelevant to the sentencing process for this offence.

12You, Harley McKinnin, have an extensive prior criminal record.  On 28 March 2012 you were first before the Geelong Magistrates' Court on traffic charges:  careless driving and other traffic offences, including speeding in manner dangerous.  Subsequently the following year you were back before the court for similar traffic offences and fined.  In 2013, however, on 27 August you were at the Geelong Magistrates' Court and received a community corrections order for offences of assault by kicking and threatening to inflict serious injury.  I was told by your counsel that that amounted to an assault and threats made to your then partner.

13On 19 December 2013 you were fined for breaching a family violence intervention order and you breached the community corrections order you had received and were dealt with on 16 September 2014 for breaching that order.  You received yet another community corrections order by way of penalty.

14On 16 December 2014 you were back before Geelong Magistrates' Court on recklessly causing injury and unlawful assault charges together with driving in a manner dangerous and contravene family violence intervention order offences.  You were sentenced to imprisonment on the injury and assault charges and a month for your driving offences.  Back on 28 October 2015 you were before the Geelong Magistrates' Court for driving while disqualified, failing to stop after an accident, driving in a manner dangerous and other offences including possession of cartridge ammunition.  Yet again you were sentenced to an aggregate term of imprisonment of five months. 

15On 15 June 2016 you received a community corrections order for another offence of contravening a family violence intervention order and subsequently have been convicted for perjury, drugs of dependences, possession of property suspected of being the proceeds of crime, driving while disqualified, until finally on 3 March 2017, shortly before the offending for which I am to sentence you, you were before the court on contravening a family violence order that I had earlier referred to, relating to your ex-partner Michelle.  You received a further community corrections order for six months on that day.  It follows, at the time you committed the offence for which I am to sentence you, you were undergoing a community corrections order.  As such that is an aggravating feature of your offending.

16Turning now to the personal circumstances of each of you and dealing with you first, Michael McKinnin, your personal history is set out in the report of Warren Simmons, Exhibit MM1.  I do not propose to deal with it extensively, because to a large extent it is irrelevant to the sentencing process.  You attended Corio West Primary School.  You were a poor student and you completed Year 10 at Corio North High School.  You have had a number of jobs since then, you estimate something in the order of 30 jobs over the years, and have found yourself finally over the last nine years working at a scrap metal business, where you were at the time of your offending.

17You have had a complicated relationship history, you have had a number of relationships and you have a number of different children from those relationships, although at the moment you are currently single.  You have had issues with drugs and alcohol throughout your life; however, drugs or alcohol played no part in the offending for which I am to sentence you.

18According to Mr Simmons you have had a history of anxiety and depression and are currently medicated, it would appear, for that condition.  Mr Simmons is of the opinion that you suffer from some minor cognitive impairment.  Clearly you still suffer from anxiety, depression and stress.  Significantly there is a complete absence of remorse in that report.  You maintained to Mr Simmons that the jury got it wrong and you were innocent of the charge for which you were convicted.

19You have a number of medical conditions that are set out in Exhibit MM2, the report from the Norlane Medical Centre, and you are medicated in accordance with the list of medication provided as part of that exhibit.  You suffer apart from anxiety, depression and panic disorder; you have hypertension issues, gastric reflux issues, asthma, hyperlipidaemia, insomnia, mild sleep apnoea; you have a history of deep vein thrombosis, you suffer from generalised seizures and have a history of recurrent chest pain. 

20The doctor concludes in Exhibit MM2 your gastro-oesophageal reflux disorder is likely to get worse with time and that your general health is likely to get worse if you continue smoking.  In that regard it is likely that a term of imprisonment will see your health improve, because you will have to give up smoking. 

21You are currently 47 years of age.  As I said, you have four children from the three relationships you were involved in.  The full history is set out in the report of Mr Simmons.

22You, Harley McKinnin, are now 26 years of age, turning 26 on the final day of the trial.  You had a somewhat disjointed childhood.  Your parents apparently did not have much of a relationship.  Your father, with whom you sit, was involved with two women at the same time and you and a half-sister were born at the same time.  It is only at the age of 17 that you discovered that you had further siblings on your father's side. 

23You are the fifth child of your mother, whom you resided with until you were 15.  As a child you moved around a lot.  Your schooling was disjointed.  You moved apparently from Geelong to Meredith and to locations in Melbourne.  Your mother worked as a cleaner.  You had a somewhat frugal existence, although she managed to support a cannabis habit.  You were educated to part-way through Year 8 level at Diamond Valley Secondary College, when you truanted, left and developed a love for BMX bicycles.

24You started using cannabis at the age of 13 and you found full-time employment at the age of 14 working in body piercing.  I was told you worked long hours and when you were in periods of time where you could not find work you took courses and undertook certificates to upgrade your skills in things such as fork-lift driving and construction certificates, for example. 

25At the age of 15 you moved back to Geelong to be with your father.  You found work in a factory and significantly, at the age of 17, your then 16-year-old partner became pregnant.  You moved in together, tried to maintain work as a sheet metal prefabricator in Breakwater, but you lost your job because of your poor driving record and the loss of your licence.  You have two children, Connor, who is now six, and Toby, who is four.  Your relationship with Michelle, your partner, terminated when she was pregnant with Toby.  They now live with their mother and you have not seen them for some time.

26As I said, some of the assault matters and the IVO breaches to which I have referred in your prior convictions related to your relationship with Michelle.

27You have some prospects, it is urged, for rehabilitation.  References tendered on your behalf describe you as being engaging respectfully, appropriately and willingly with the Salvation Army Connect service.  Your behaviour is said to be exemplary towards co-residents and people who you were involved with.  Another reference provided by your counsel describes you as showing a desire to learn and being eager to work and that you are not a hardened criminal. 

28I accept that your prior convictions mean that your prospects for rehabilitation are somewhat opaque; however, you are not totally without some hope for the future.  You have the ability to work, you have demonstrated that in the past, and you have done courses to promote your skills.  Maybe, and it is to be hoped that your counsel is right, that it is not too late for you.

29Turning to sentencing considerations in this case, clearly general deterrence, denunciation and just punishment are the predominant sentencing factors for each of you.  You, Harley McKinnin, need in addition to be specifically deterred given your prior criminal history.  Neither of you are entitled to a reduction in sentence you would have received had you pleaded guilty and neither of you have demonstrated remorse for your offending; rather, you have lied to the police and falsely sought to blame your victim for what occurred on that night.

30Recklessly causing serious injury is an serious criminal offence.  The maximum penalty of 15 years' imprisonment demonstrates the seriousness with which Parliament regards offences of this type.  A number of factors demonstrate your offending to be an extremely serious example of the offence of recklessly causing serious injury.  That is it is a top-level example of the offence, not the worst example of it.

31Firstly you were both acting in a vigilante fashion.  You overreacted in a gross way to what you saw as an attempted theft from the motor vehicle parked outside your vehicle.  There is no justification for going in search of the young men who had tampered with the motor car.  Secondly, in the course of that search, your victim was a completely innocent man and had not been involved in any way with you.  Thirdly, your attack was sustained.  You both continued to strike Mr Broad after had had been knocked to the ground and clearly severely injured.  Your behaviour, fourthly, involved in my view a high degree of recklessness.  Striking a man repeatedly with baseball bats carries an obvious high probability of serious injury.  Fifthly, your attack only ceased upon Mr Broad after the perhaps brave intervention by Ms Boxshall.  Finally, sixthly, the injuries you inflicted were clearly serious and in a sense you were lucky that they were not worse.

32Clearly nothing but a substantial term of imprisonment is appropriate for both of you.  You are both equally to blame for what occurred and in my view there is nothing to distinguish between you for the conduct on the evening.  You, Harley McKinnin, have relevant prior convictions for violence; you, Michael, have not.  You, Harley, are still a relatively young man; you, Michael, are not.  You, Harley, were undergoing a community corrections order at the time.  Because of the need to specifically deter you, Harley McKinnin, I will impose a slightly higher sentence on you than upon Michael McKinnin.  Your prospects of rehabilitation are not as good as those of your father. 

33Would you both stand up, please.

34On the one charge of ‑ ‑ ‑

35OFFENDER H. McKINNIN:  Can I say a couple of words first, Your Honour?

36HIS HONOUR:  No, you can't at the moment.  just wait till I ‑ ‑ ‑

37OFFENDER H. McKINNIN:  Why not?

38HIS HONOUR:  ‑ ‑ ‑ finish this.  On the one charge of recklessly causing serious injury you, Harley McKinnin, are sentenced to be imprisoned for eight years.  I order that you serve five and a half years of that term before  being eligible for parole.

39You, Michael McKinnin, are sentenced to be imprisoned for seven years and six months and I order that you serve five years of that sentence before being eligible for parole.  I declare that 28 days for each of you of the sentences just imposed has already been served by way of pre-sentence detention.

40Would you remove the prisoners, please.

41OFFENDER H. McKINNIN:  The whole thing was a scam set up by Geelong police.  They pinned the armed robbery - they all stuck together 'cause they didn't want to get sacked.  Gavin's still walking around, driving around. 

42HIS HONOUR:  Any other orders required? 

43MR REGAN:  There's a forfeiture order for the white baseball bat ‑ ‑ ‑

44OFFENDER H. McKINNIN:  You're fuckin' dead, mate.

45HIS HONOUR:  I make the order of forfeiture sought by the prosecution.  I will adjourn now until Monday at 10.30.

46MS LACY:  As the court pleases.

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