Director of Public Prosecutions v McKinnon
[2024] VCC 1356
•30 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00708
CR-23-00709
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM MCKINNON RICHARD PEARS |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 August 2024 | |
DATE OF SENTENCE: | 30 August 2024 | |
CASE MAY BE CITED AS: | DPP v McKinnon & Anor | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1356 | |
REASONS FOR SENTENCE
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Subject:Sentence
Catchwords: Intentionally Cause Injury --- Recklessly Cause Injury --- Theft --- Robbery --- Trial --- Incident occurred in victim’s home --- Violent and sustained assault --- Victim suffered 8 fractured ribs, fractured nose, bruising, abrasions --- Theft of car --- Offence committed in company --- Interpreting jury verdicts --- Risk of Deportation --- Parity
Legislation Cited: Sentencing Act 1991 --- Migration Act 1958
Cases Cited:R v Verdins (2007) 16 VR 240 --- Guden (2010) 28 VR 288 --- Cheung v The Queen [2001] HCA 67 --- Turneyv The Queen [2020] VSCA 131 --- R v Lacey [2006] VSCA 4 --- Magee v The King [2023] VSCA 80 --- Fonau v The King [2022] VSCA 213
Sentence: For Offender McKinnon: 4 years and 5 months imprisonment --- Non Parole Period of 3 years --- 2 years licence disqualification
For Offender Pears: 8 months imprisonment --- 2 year and 6 months Community Correction Order --- 2 year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Gray | Office of Public Prosecutions |
| For the Offender McKinnon For the Offender Pears | Mr J. Portelli Mr J. Barrera | Doogue & George Stary Norton Halphen |
HER HONOUR:
1William McKinnon and Richard Pears, after a 12-day trial a jury found you both guilty of a raft of offences committed on 9 September 2022. That offending related to a violent assault committed against Renata Manning in his home in the wee hours of that morning. It was witnessed by his housemate and sometime partner, Bradley Hucker.
2You both entered that house with another man, Boban Djurkovic. Mr Djurkovic has pleaded guilty and already been sentenced. My task is now to sentence you in line with the jury verdict.
3Mr McKinnon, you were 49 years of age at the time of these events and are now 52 years old. The jury found you guilty of:
· Charge 2 of intentionally cause injury;
· Charge 4 of theft; and
· Charge 5 of robbery.
4The jury found you not guilty of a charge of aggravated burglary and not guilty of a charge of common law assault relating to Mr Hucker.
5Mr Pears, you were 36 years of age and are now 38 years old.
6The jury found you guilty of:
· Charge 3 of recklessly cause injury;
· Charge 4 of theft;
· Charge 5 of robbery.
Mr Pears, I upheld a no case submission, entering a verdict of not guilty on the aggravated burglary charge against you. The jury found you not guilty of the charge of cause injury intentionally.
Background to the offending
7
The background to the offending is as follows. Mr McKinnon, you had known
Mr Hucker for about 6 to 12 months. You and he had had drinks together at your local pub or bottle shop in Sunshine. You had previously been to his house and had exchanged phone numbers with him.
8You had met Mr Manning on at least a couple of occasions at their house.
9Mr Pears, you and Mr McKinnon had also become friends and you, Mr Pears, had also met Mr Hucker while drinking in Sunshine over the past months. You had also met Mr Manning at some stage.
10
One week before the incident of your offending, on 2 September 2022, you,
Mr McKinnon, attended at the home of Mr Hucker and Mr Manning in the early hours of the morning in company with two other men. You went into the house where you had a verbal dispute with Mr Hucker about some money you perceived he owed you, $50 apparently related to birthday drinks. Mr Hucker described you as drunk and in a belligerent state. He said on that occasion you were uninvited and unwelcome. Mr Manning was present, and it is apparent that he did not like the fact you were in their home, drunk and demanding money.
11
The following day, Mr Manning made the fateful decision to go to your house
Mr McKinnon, and to throw two large bluestone rocks through your front windows.
12
Upon your return home, you and your friend discovered the damage and understandably you were upset. What followed was a week of trying to find
Mr Manning and speaking to Mr Hucker in an effort to get money so that you could fix your windows.
13Mr Hucker said:
It wasn't discussed fixing the windows. It was more hounding me to see if Renny had returned. He was after Renny. It wasn't anything to do with me. He wanted to know if Renny had returned home.
14
You continued to message Mr Hucker about where Mr Manning was and on
4 September 2022 you told Mr Hucker that you had proof from neighbouring CCTV cameras that Mr Manning was responsible for the damage to your windows.
15Mr Hucker was trying to be a peacemaker in the dispute, but Mr Manning went to ground. It is obvious that this only inflamed your feelings of grievance about the broken windows.
16Mr Manning confirmed in his statement made in the days following these events and in evidence, that Mr Hucker had mentioned that you were looking for him, Mr McKinnon, and that you ‘wanted to beat him up’.
The Offending
17On the night of 9 September, you both were drinking at the Bottle-Mart in Sunshine. You were drinking there with Mr Djurkovic.
18The bottle shop closed at about 11 pm and you proceeded to drive home, which is in the direction of the Hucker/Manning house. You arrived at that house at about 11.45 pm.
19Mr Hucker gave evidence that Mr Manning returned home on that day. At the time of your arrival, Mr Hucker and Mr Manning were in the front lounge of their property. They were both on the 'L' shaped couch and both Mr Hucker and Mr Manning were asleep. The television was on.
20Mr Hucker gave evidence that he was woken by the sound of knocking or banging on the weatherboards of the house. He said he was still half asleep, opening his eyes when he saw you, Mr McKinnon, walk into the living room. He denied that you were in any way invited into the home.
21Mr Hucker described you as being surprised to see Mr Manning in the house.
22Both Mr Hucker and Mr Manning were clear that you, Mr McKinnon, started assaulting Mr Manning immediately and as he lay asleep on the couch. Both men described you variously throwing Mr Manning across the coffee table and him ending up lying wedged between the coffee table and the couch where you repeatedly assaulted him, using your fists and feet. Mr Manning said 'I was lying down on my stomach and being repeatedly stomped on'. Both men describe you using a heavy cat statue to threaten Mr Manning.
23After some period of time, Mr Djurkovic entered the living room and sometime later was followed by you, Mr Pears.
24
Mr McKinnon continued to assault Mr Manning and made demands for his car keys. When he refused to answer, you, Mr Pears, placed him in a headlock and slapped him in the head, again demanding his keys. It is the combination of those actions that found the charges of intentionally cause injury for you,
Mr McKinnon, and recklessly cause injury for you, Mr Pears.
25Mr Manning was asked whether you, Mr Pears, were assisting. Mr Manning stated that he remembered you trying to hold him so Mr McKinnon could punch him.
26You, Mr McKinnon, found Mr Manning's car keys and wallet. He describes you rifling through his personal belongings. You took $120 cash and an EFTPOS card. You also took a photograph of Mr Manning's licence.
27Mr McKinnon, you then told Mr Hucker and Mr Manning that you were taking the car as collateral before leaving the address with you, Mr Pears, and Mr Djurkovic. Mr McKinnon, you made a final threat to kill Mr Manning if he reported anything to police.
28You, Mr McKinnon, drove off in Mr Manning's Subaru, while you, Mr Pears, drove off in Mr McKinnon's white Toyota Hilux with Mr Djurkovic. Those two vehicles were captured driving in convoy at approximately 2.09 am on 10 September 2022 in the nearby streets. It is those latter acts which constitute Charge 4, theft of the motor vehicle, and Charge 5, robbery, relating to the keys and money.
29Both Mr Hucker and Mr Manning described this as a brutal and sustained assault, lasting some hours. Mr Hucker says 'Mr Manning was a mess, covered in blood and in a lot of pain’ after you left. The CCTV supports that account, namely showing that you drove away from the premises around two hours after you left the Bottle Mart.
30
Mr Manning says they did not call police because Mr Hucker was in shock.
Mr Hucker described this event as 'horrific' and 'like a horror movie'.
31
After you had left, Mr Hucker took Mr Manning to Footscray Hospital.
Mr Manning then with the assistance of hospital staff called Triple 0 at around midday on 10 September to report your actions. That call was played to the jury. Mr Manning stated, 'I was sleeping and the next thing I know I'm being punched in the head very, very, very hard'.
32Mr Manning was examined at Footscray Hospital and was found to have the following injuries -
·On his right side, three moderately displaced rib fractures, and a possible fourth non-displaced rib fracture.
·On the left side, three moderately displaced rib fractures, two non-displaced fractures to the anterior aspect of two further ribs and a contour deformity and fracture of the anterior aspect of an eighth rib.
33Dr Gaya, Forensic Physician with the Victorian Institute of Forensic Medicine, gave evidence that there was concerned Mr Manning had a flail chest, which occurs when a segment of rib loses its connection to the remaining ribs and moves independently on breathing. He stated this can impair breathing and requires close monitoring and potentially supportive treatment.
34Mr Manning also sustained a small right hemothorax, which is a small collection of blood in the space between the lungs and the chest walls, likely due to damage caused by the fractures to the ribs.
35In relation to the mechanism of injury Dr Gaya stated that:
The pattern of rib fractures in Mr Manning's case suggests multiple impacts with significant force. The presence of both displaced and non-displaced fractures indicates varying degrees of trauma. On the right side, fractures on fourth to the seventh ribs are less concerning in isolation but their presence suggests blows to the right side of the chest. With regards to the left side, the concerning aspect lies on that side where multiple adjacent ribs, six in total, are fractured. This raises a high suspicion for a flail chest … This can be caused by severe blunt force trauma such as direct blow, kicked or stomping to the chest wall.
36Mr Manning also sustained nasal fractures to both sides of his nose, likely due to direct impact.
37He also suffered head and neck injuries, facial bruises and abrasions to the forehead, cheeks and earlobes, including a laceration to his ear lobe, along with the bleeding in the white of the left eye as well as a black eye around that eye.
38These injuries, according to Dr Gaya, are:
Due to blunt force trauma to the face and head, although bleeding in … the white in the left eye … can include… a gouging or scratching of that eye.
39The abrasion marks to the neck could be from 'blunt trauma or compression which can be from clothing' and he gave the example of someone grabbing a collar and pulling them tightly in a rapid motion.
40In addition, Mr Manning had multiple scratches and bruises to both arms, his left leg, and multiple bruises to his back and lower chest.
41Overall Dr Gaya stated that –
In my view the pattern and distribution of injuries raises a strong possibility of an assault and the presence of multiple injuries across different body regions including serious rib fractures highlights the extent of the event that caused these injuries.
42Mr Manning spent five days in hospital with significant pain relief, physiotherapy and close medical surveillance. He was discharged for follow-up with an x-ray in 4-6 weeks, and a referral to a maxillofacial surgeon regarding his nasal fractures.
43Mr Manning engaged in a pretext call with you, Mr McKinnon, on 14 September. In this call you stated that:
You know, you wanna be a gangster and throw rocks through a window and when things turn out badly, you wanna call the police. It's really a bit shit, mate.
44Following this call, you sent Mr Hucker a text to inform him that you had talked to Mr Manning about him wanting to pay for the windows.
45On Friday 15 September 2022, Mr McKinnon, you were arrested by police. You took the police to where Mr Manning's Subaru was parked and then participated in a record of interview. During the record of interview you gave an account of both the lead-up events and the events on 9 September.
46You claimed that coming home from the pub it just seemed like a good time to talk to Mr Hucker; that the door was open, that you called out to him and that he waved you in and said 'come in'. All of that account was refuted by Mr Hucker.
47You claimed that as soon Mr Manning saw you, you said:
Hey mate, what are you gonna do about my windows? [and that Mr Manning] called me an effin' C or something and then just lunged at me. And I just grabbed him and tried to sorta tackle him rugby style but then my back sorta just went out on me and I just - we both hit the deck.
48You said both of you ended up dropping onto the coffee table.
49You said:
I ended up on top of him, I just had him - holding him by the scruff of the shoulders and I just said, 'If I let you go are - are you gunna stop trying to hurt me or fight me', and we both agreed to that. And he got back up and sat there and I pulled up a dining chair, something like that, I sat there, and we sat there and tried to sort things out verbally, which was what we were there to do.
50You claimed to have acted in self-defence. The jury by their verdicts clearly rejected your account.
51In relation to the car, you claimed that taking the car would resolve the issue of the money for the windows:
…and then he would fix it up in the next couple of days and get his car back. There was never any intention to deprive him of his car permanently.
52You stated that you told Mr Manning to call you when he got the money, and that you were given keys to drive his car home. Again, that account was rejected by the jury.
53
On Thursday 5 October 2022, Mr Pears, you were arrested by police and transported to Sunshine police station where you participated in a record of interview. You acknowledged you had been drinking with Mr McKinnon and
Mr Djurkovic on 9 September and that you had been to Mr Hucker's address before. You were asked about the events of 9 September and specifically it was put to you that at one stage you had Mr Manning in a headlock and gave him a couple of punches to the head. You said, 'No I didn't do that. I didn't touch him'.
54You denied holding him as Mr McKinnon punched him. You denied driving the car away.
Interpreting the Jury Verdicts
55I heard submissions from all Counsel on the plea regarding what findings of facts I can and should make as a result of the jury verdict.
56
I make the following findings in relation to you, Mr McKinnon. By their finding of not guilty on the aggravated burglary, the jury were not satisfied that you had an intention to assault Mr Manning prior to entering the house. Even after
re-directing the jury that a conditional intention would be sufficient, i.e. in the nature of 'if I find him at home, I will assault him', the jury returned a not guilty verdict on that charge.
57
I therefore accept that you did not have an intention to assault him at the time you entered the house. I make clear that I am not in any way sentencing you for an aggravated burglary. I accept that you attended the house, probably to confront Mr Hucker and find out what was happening with Mr Manning and the repayment for the windows. I accept that the jury likely reached that conclusion given the evidence of both men that Mr Manning had parked his car in the garage, that the car could not be seen from the street and the evidence of
Mr Hucker that he had not informed you of Mr Manning’s return, and that when you saw Mr Manning you were ‘surprised'.
58
Having reached those conclusions I find, however, that you, Mr McKinnon, were an unwelcome and uninvited guest; that you were attending in the context both of your belligerent behaviour on 2 September and your feelings of anger since the rocks were thrown through your windows. I reject your account in your record of interview of your manner of entry to the house, as the jury must have done. That visit occurred very late at night when you were drunk. In my view, the visit was always going to be a hostile one, not to assault, but to confront
Mr Hucker over what was happening with the broken windows and Mr Manning’s location.
59In assessing the gravity of the assault which then occurred, that context is relevant and informs the seriousness of what then occurred inside the house.
60Having entered the house, your intention to assault Mr Manning formed almost immediately. You assaulted a sleeping, defenceless man, much smaller than yourself. You did so viciously and over a long period of time. That assault included picking him up, throwing him over the coffee table, hitting him, kicking him, stomping on him and threatening to hit him with the statue. It involved grabbing him in a way which likely gouged his eye. At some stage it continued while in company with Mr Djurkovic and Mr Pears.
61The jury had no difficulty in concluding that by your actions, you intended to cause him injury, and you did so.
62In relation to your part in the assault, Mr Pears, I find that you did enter the house at a stage after both Mr McKinnon and Mr Djurkovic were inside and that the assault was well under way. I find that the jury must have accepted Mr Hucker’s evidence in that regard and were right to do so, given the fact Mr Manning was initially asleep, had consumed cannabis, and was later suffering the effects of his injuries.
63
The timing of your entry is unclear for several reasons. First, time is notoriously difficult to estimate generally. Second, a person under stress, as
Mr Hucker was, is unlikely to accurately estimate time. Third, the delay in giving evidence about that at committal or at trial has likely had an effect. However I accept there was a delay of some minutes, likely more than 15 minutes.
64
I find that the injuries were caused by Mr McKinnon and that I could not conclude you, Mr Pears, directly inflicted any of them. You are guilty of recklessly causing injury on a complicity basis. That is, by your involvement in either encouraging or assisting Mr McKinnon, you were reckless as to the likelihood of Mr Manning being injured. That is, you provided assistance and encouragement to
Mr McKinnon and participated (to the extent you did) knowing injury would probably result.
65
I find that participation, at its highest, was by way of holding Mr Manning in a headlock and slapping him to the face. That must have occurred at a time when he had already been severely beaten by Mr McKinnon and no doubt was in a parlous state. Those acts occurred in the presence of Mr McKinnon and
Mr Djurkovic.
66In relation to the theft of the car, in relation to both of you, the jury have accepted that there was no consent in relation to the taking of the car and the keys and that the keys were taken by force. This latter fact is reflected through the guilty verdict of the robbery charge.
67I find that the jury has accepted that you, Mr McKinnon, took the car dishonestly, without any belief in a legal right to take it.
68
In relation to you, Mr Pears, that you intentionally assisted or encouraged
Mr McKinnon to commit that offence. This guilty verdict also reflects that the jury were satisfied that you, Mr Pears, actively participated in the theft of the keys by force through the headlock and the demands that were made by both of you.
69
Regarding the robbery, and in relation to you, Mr McKinnon, I am also satisfied that you stole the cash and wallet from Mr Manning. On the basis of the evidence, I find that that seems to have occurred at an early time in the incident and likely before Mr Pears was in the house. I could not be satisfied that
Mr Pears was complicit in the taking of the cash, in particular as the jury verdicts reflect their acceptance that you, Mr Pears, entered the premises at a later time.
70
I find that both of you were involved in the taking of the car keys as demonstrated by the jury’s guilty verdicts regarding the robbery. In relation to you,
Mr McKinnon, the force or fear of force is amply demonstrated by what had occurred by way of the assault.
71In relation to you, Mr Pears, I find that the jury must have accepted the evidence of Mr Hucker that in the latter part of the incident you grabbed Mr Manning in a headlock and slapped him to the head a couple of times; and relevant to this offence said words to the effect 'Come on give him the keys'.
72The jury had open to them an alternative charge of theft in relation to the keys and money, but found you both guilty of robbery, demonstrating their acceptance of the use of force or fear of force to extract those items.
Sentencing Principles
73This is a serious incident. In sentencing, I must have regard to the principles of general deterrence, denunciation and just punishment. That is, the sentence I impose must generally deter others from what is essentially vigilante violence for some perceived wrong. It must denounce violence on behalf of the community and must look to achieve community protection.
Objective Gravity
74Mr McKinnon, your decision to attend Mr Hucker’s home late at night when alcohol-affected was at least foolish, if not aggressive. Your behaviour once inside bears that out.
75People have the right to feel safe in their homes. On 2 September, you entered their home and behaved aggressively. On 9 September, after a week of build-up of anger, you attended again and behaved in this more extreme way. You had no right to do so. It is intimidating behaviour of people in their own home.
76Your assault of Mr Manning was particularly vicious. As I have said, you assaulted a vulnerable, completely defenceless and smaller man. It smacks of cowardice. You did so in the presence of another man who you believed to be his partner. You did so for a long period of time and in a variety of ways. You did so knowing you had a couple of mates there who were willing to, and did, back you up. And you caused Mr Manning injury.
77The injuries suffered by Mr Manning must be towards the upper end of the range for a cause injury charge.
78Not satisfied with having beaten him up, you then demanded and stole his cash and his car. The car was not only an item of some value itself but contained many of his possessions because he was in the process of moving. It also contained identity documents, the loss of which has caused him distress. It was bully behaviour of a high order. Equally, the theft of the keys was effected by way of force and fear of more force. You made repeated demands. You made threats. Again, you had back-up to do so and, Mr Pears, you participated in effecting those thefts.
79Those matters all aggravate your offending, Mr McKinnon. In particular, the offence of intentionally cause injury in my view is a serious example of that offence.
80I do take into account that it was spontaneous in that you did not expect to find Mr Manning at home. However, it is aggravated by the context I have described. It is aggravated by the nature, extent and seriousness of the assault and by the injuries sustained to Mr Manning and their lasting impact on him both physically and mentally.
81In relation to the theft and robbery offences, I accept the submissions made on your behalf, Mr McKinnon, by Mr Portelli, namely that I could not conclude that you would not return the car to Mr Manning after the windows had been repaired. Mr Portelli relied on the fact that you referred to the car as being collateral for the windows, and on the contents of the pretext call where you said just that, namely that you would return it once the windows were fixed. Mr Portelli relied on the fact that you discussed obtaining two quotes so that Mr Manning would only have to pay the lesser cost for the windows. Those are all good arguments and I accept them. I am mindful of course that the pretext call necessarily occurred after you had already assaulted him.
82In relation to your involvement in this offending, Mr Pears, I accept you were the follower, the lesser player. I have no doubt you regret your decision to go into that house after your friend. I accept that you initially sought to diffuse the situation, by saying ‘What the hell’s going on here?' and 'Brendan, don’t you think that’s enough?’ but thereafter you did participate. You did so verbally, through threats and demands, and physically by placing an already injured man in a headlock and slapping him. That all occurred of course in his home. You were an active participant in the threatening demands and in taking of the car and the keys. In those ways, your offending is aggravated.
83I accept that the context of the previous dispute, though obviously known to you, was not your dispute and therefore I am careful not to hold you accountable for the aggression demonstrated by Mr McKinnon throughout the intervening week.
Victim Impact Statement
84Mr Manning prepared a detailed and powerful victim impact statement and it is evident that your offending has had a serious impact on his life.
85Mr Manning says:
Since the crime, I have struggled with a multitude of things that have negatively impacted my overall wellbeing. Immediately after and for a few months after the crime, sleeping was incredibly difficult. I struggled to fall asleep due to having vivid flashbacks of what occurred and struggled to stay asleep due to frequently waking up during the night. I would wake due to the physical pain I would be feeling, but also due to the frequent disturbing and realistic nightmares I was having every night. These nightmares were of the crime being re-committed, and waking up I would be hyperventilating and sweating.
86He talks about his feelings of paranoia and feeling unsafe in his home environment:
I constantly feel paranoid that people are going to get me; that people are watching me, or following me. I worry they are going to come and hurt me, and that the perpetrators will find me.
87He also says:
My emotions after the assault were heightened. I felt I had no guarantee of safety during the immediate healing process. I had no security cameras, and I had seen my assailant in my hometown which made me feel totally unsafe.
88He referred to the physical pain of the assault as:
Nothing I have ever felt before. For at least four months after the assault, I feel pain every day. The pain comes when I am doing even simple things, such as eating or talking, which is just a constant daily reminder of what happened.
89Mr Manning speaks about the effect on his work and the shame that he feels:
I felt exposed and ashamed that so many people at my then-current workplace knew what had happened. As a result I do not work there anymore.
90Due to medical appointments and court appearances, his current workplace is also aware of that occurred.
Working with people in a team since the assault has been difficult for me. I can become so irritated and frustrated by my colleagues so easily, so I now work on my own in another sector of the factory to avoid contact with anyone.
91He speaks also to his loss of enjoyment of everyday activities:
Getting up for work is hard, concentrating is hard, and at times feeling happy and positive at all is really hard . I am not as active as I used to be and I do not enjoy things I used to anymore, such as sports and physical activity.
92He refers to the financial impact of your offending including the fact that his car was stolen so he had to use taxis and Ubers:
Inside my car I had various personal items. My passport being stolen was stressful. I had to go through the process of obtaining another. To this day, I have not heard where my passport went and this is particularly distressing.
93Mr Manning also speaks of the additional stress that the proceedings caused him:
During the trial and when I was required to be at court, things were particularly difficult for me as I had to discuss what happened and this caused my emotions to run on overdrive. Talking about what happened was truly confronting. During the times I was required in court, my mental health spiralled and I was distressed for days on end.
94I thank Mr Manning for taking the time to prepare his victim impact statement. It is important for a sentencing court as well as for offenders to understand the consequences for victims and the way in which offending impacts their lives in an ongoing way. I take those matters into account.
95
I also take into account the impact that this offending is likely to have had on
Mr Hucker who has chosen not to make a victim impact statement.
96Mr Hucker did nothing more than attempt to broker a peace deal over the broken windows. He viewed you both as acquaintances, if not friends. He was entirely innocent of any wrongdoing. However, he was in the same room at his home when this violent assault happened. He was witness throughout, and it was apparent from the way he described these events, that they were traumatic and distressing. He stated:
Renny was basically out flat on the floor and that’s where everything happened after that. Because they had him pinned on the floor, he couldn’t get up.
97He said once Mr Manning was on the floor he was ‘belted into non-stop’. He described it as ‘pretty horrific, like watching a movie, but in front of you’.
98He described your appearance, Mr McKinnon:
.. sweating profusely, his eyes were black, that he was just in a very aggressive, violent nature. [He said you] were just laying into Mr Manning's head, face, ribs.
99At the end of what was clearly a lengthy and sustained assault, Mr Hucker stated:
Renny was a mess. He was covered in blood. The whole loungeroom was in disarray. It was just all thrown apart, but more to that was the injuries. He was in tears. Yeah, it was just a horrible time. He was in a lot of pain. He was a mess.
100He described it as relentless, 'It's like torture'. No doubt there have been ramifications for him also from directly witnessing that violent event in his home.
Personal Circumstances – William McKinnon
101
I turn now to your personal circumstances, Mr McKinnon. In assessing your personal circumstances, I have had the benefit of reading the material provided by your Counsel. That includes his submissions, the psychological report of
Ms Daniella Kocic dated 8 August 2024 and Western Health Records dated
23 August 2024. I have also received various written references.
102You were born in New Zealand and are the eldest child in a sibship of three. Your younger brothers are aged 44 and 47.
103Your father was 40 years older than your mother and you have approximately 16 older paternal half-siblings.
104Your father was a diesel mechanic and fitter and turner and your mother worked as an administrative manager.
105When you were six years old, your father died from a stroke. He was 63. Your mother was only 23 years old at the time of your father’s death and you say through your life you assumed greater responsibility in the household due to being the eldest and wanting to support your mother and your siblings.
106The death of your father affected you greatly and according to Ms Kocic you have not yet processed your grief.
107You attended high school until year 11. You moved to three different high schools and were placed in a Catholic school, which you did not enjoy.
108You began an Arts Degree in New Zealand with your partner at the time, however you withdrew from that course due to your partner struggling with the coursework.
109You immigrated to Australia when you were 17 years old, in 1989, with your girlfriend at the time. Your mother later immigrated to Australia in 1999 and worked in student accommodation.
110You have undertaken employment in roles such as bartending and waitering while you were in 20s. You have also held employment in sales, marketing and real estate. You have had a disrupted employment history over the last 19 years due to your drug use.
111You established your own metal recycling business a few years ago, however in the lead up to this offending you were receiving less work which impacted your business. You were a recipient of the JobSeeker benefits through Centrelink.
112You have a positive relationship with your two younger brothers who both reside in New South Wales and you have a close relationship with your mother. You lived with her while you were on bail in relation to this matter and she has been present throughout your trial and at your plea.
113You have a longstanding history of cannabis use and a history of heroin use which increased when you underwent a relationship breakdown in your early 30s. You were placed on a methadone program to assist you in ceasing your heroin use and underwent counselling.
114You also have a history of gambling which has been problematic throughout previous relationships.
115You have had three serious relationships, with the first when you were between the ages of 16 to 28. That was an on and off relationship and following its ultimate conclusion you have maintained a civil relationship.
116Your second relationship began shortly after the first ended and you had a child together, a daughter who is now 22 years old. Your gambling and drug use impacted this relationship and your partner ended it when your daughter was two. She then moved to Tasmania with your daughter and although initially there were regular visits, over time you have lost contact. You say your daughter is not interested in maintaining a relationship with you, although you have expressed some interest in resuming contact.
117Your third relationship occurred when you were between the ages of 36 and 45. Similar issues of drug use and gambling contributed to the end of that relationship.
118You have experienced a history of anxiety and depression in the context of those intimate relationship breakdowns. You report experiencing some suicidal ideation in the context of losing access to your daughter. You saw a psychiatrist following the breakdown of that relationship and were advised to commence buprenorphine and lithium, but you declined. You had commenced venlafaxine, however you did not like the side effects and you ceased your use of this after three days.
119You engaged in a brief period of counselling in 2017 after being involved in a physical altercation. You were mandated to attend anger management counselling for six months in 2019 from the Community Centre in Sunbury as part of a Community Correction Order.
120You have denied developing a problem with alcohol, however you report drinking three to four times per week at the local bar to the point of what you describe as ‘mild intoxication'. You report that gambling is still an issue for you, however you are actively avoiding environments which expose you to that risk.
Prior Criminal History
121Mr McKinnon, you have a lengthy prior criminal history which starts in 1989 in New South Wales. Your offending over a period of six years in New South Wales includes matters of dishonesty and deceptions, possession of a firearm without a licence, resisting arrest and assault. You variously received fines and what looks to be the equivalent of a Community Correction Order.
122
From 2004 you have a history in Victoria. That too relates to numerous dishonesty matters and deceptions. For what looks like a consolidation of matters, you received a six month term of imprisonment wholly suspended for
12 months. You breached that order, but no further order was made.
123Again you received a suspended sentence in 2007 for dishonesty matters. In 2009 you received a three-month Intensive Correction Order for burglary and dishonesty matters. You breached the ICO by further offending including burglary. You received a further ICO which does not appear to have been breached.
124In 2013 you received a CCO. There is then a significant gap in your prior history, with your next offence dealt with in 2019. That was a charge of intentionally cause injury, which I was informed related to an altercation you had with a friend after a Christmas party in 2018. You and he became involved in a physical fight and he sustained facial injuries including the loss of three teeth, cut and fracture to the nose and cuts and swelling to the forehead and face. In 2019 at the Magistrates' Court, you were placed on a CCO for 18 months for that offending. The CCO included conditions aimed at drug addiction and mental health treatment, as well as a requirement to undertake anger management. That order would have concluded just over a year prior to this offending.
125Given that past history, specific deterrence is also a relevant consideration for you.
Physical health
126You have a number of physical health issues which are referred to by Ms Kocic and supported by medical records. Those conditions include a history of prolapsed discs, nerve pain, paravertebral abscesses and degenerative arthritis. Chronic pain and arthritis are long-standing, in particular in your back and knees. That is travelling towards your ankles and you have progressively lost muscle mass. Prior to your remand, you were waiting on an appointment with a rheumatologist.
127You have gastrointestinal issues, potentially indicative of Crohn's Disease, and you suffer functional issues, which include loss of bowel control which requires frequent monitoring and may require further surgery.
128You experience pain in your mouth and sinus region and since your remand your mouth has become infected, and you are waiting to see an ear, nose and throat specialist in custody.
129
You are medicated by way of methadone and also celebrex which is an
anti-inflammatory medication for your back pain. Other muscle relaxant and
anti-anxiety medication for degenerative arthritis are not available to you in custody because they are recognised as being addictive.
130I take into account your physical health and the way it impacts your life and will impact your experience of incarceration. It is a relevant sentencing consideration. I accept chronic pain is debilitating and depressing. Your bowel condition is no doubt something that makes you self-conscious and anxious. I appreciate that treatment by way of medication and by way of easy access to specialist care can be more limited during incarceration. I accept that those matters are likely to make imprisonment more burdensome for you.
Mental Health and R vVerdins
131According to Dr Kocic, on testing, you exhibit moderately severe depressive symptoms and mild anxiety symptoms. Your background has likely predisposed due to major depressive disorder characterised by your low mood, lack of motivation, worry and feelings of worthlessness. That disorder was perpetuated in the context of your relationship breakdowns and the disrupted relationship with your daughter. More recently your issues of chronic pain have exacerbated your underlying mental health issues.
132Mr Portelli relied on what he referred to as your ‘complex mental health history’ and physical health issues as enlivening limbs 5 and 6 of R v Verdins[1]. That is, to make a submission that due to your mental and physical conditions, imprisonment weighs more heavily on you compared to a person without your conditions. Dr Kocic states that ‘the volatile nature of the prison environment can further exacerbate [your] symptom profile and risk of decompensation'.
[1]
133According to Dr Kocic. your mental health has deteriorated while on remand and you have experienced a poor appetite, feel like a failure, have difficulties sleeping, have low energy and a lack of motivation.
134I do not accept that you have a ‘complex’ mental health history. However, I do accept that, to a limited extent, your major depressive disorder makes imprisonment more difficult for you and I take that into account.
Risk of Deportation
135You have experienced depressive symptoms, anxiety and stress in relation to these proceedings and your concern that you might be deported. You were born in New Zealand and, although you moved to Australia at around age 17, you do not have citizenship, but are a permanent resident in Australia. What that means is a sentence of imprisonment of 12 months or more will likely result in visa cancellation and the potential that you will be returned to New Zealand, a country where you have no real connection or history.
136I accept that that is a relevant sentencing consideration in that you are likely to experience stress and anxiety over that status. I accept that will mean the loss of opportunity to reside in the country where you have spent most of your adult life. In your case, deportation would mean separating you from your mother and brothers and also from your 22-year-old daughter. I take those matters into account.
Prospects of Rehabilitation
137In assessing your prospects of rehabilitation, I take into account the following matters.
138According to Dr Kocic, your general risk of reoffending is moderate. She forms that conclusion on the basis of your prior criminal history, including of a similar offence, evidence of an antisocial peer group, mental health issues, lack of support, unstable employment, alcohol use and a lack of involvement in leisure activities.
139Although Dr Kocic suggests you have partial insight and judgement into your offending, I do not accept that opinion. I do not accept it given that despite the jury verdict rejecting your account of these events, you essentially repeated them to Dr Kocic, maintaining a version that the victim rugby tackled you and fell onto ‘something small’ and despite the vicious and prolonged assault, you deny any intention of harming Mr Manning or any negative feelings towards him. You do not seem to have grappled with the evidence, including how long you were in the house, nor the extensive injuries to your victim. You engaged in victim-blaming regarding the windows and do not seem to understand the simple option would have been to call police. Instead, you elected to deal with that situation yourself and ultimately to do so with violence. Your feelings of guilt for the offending seem to relate to your recognition of the suffering of your mother and the possibility of you being deported.
140In the same vein, I am cautious regarding a number of your references which recite your version of events.
141It was not suggested that there is any evidence of remorse on your behalf. You have not used your time on bail or on remand to access any mental health support or pharmaceutical treatment.
142You do have the ongoing support of your mother and you anticipate living with her upon release, subject of course to your immigration status.
143I have also received a number of written references, all of whom write in the knowledge that their references would be used for court. As I stated, it is not clear to me whether they are reliant on your version of these events. However, I will take their testimonials at face value.
144Professor Bronwyn Tolson writes that she has known you for the past seven years and has spent time with you on multiple occasions in both Melbourne and Sydney. You have been a guest in her home and have assisted her in various ways. She has shared time with you in wider social settings which have included visiting dignitaries. She described you as convivial, articulate and politely engaging. At times she says when others have exhibited antisocial conduct, you have been a diffuser, 'he does not encourage conflict'. On her visits to Melbourne either professionally or personally you have found time to drive her and be something of a guide.
145She says she has never observed antagonistic or aggressive behaviour, but rather finds you to be a caring person who enjoys the company of others.
146She confirms that you have struggled with health issues, including having a stroke in your 20s, chronic hepatitis for 15 years, irritable bowel syndrome, arthritis and herniated discs. She refers to several in-hospital admissions over the past two years. She says due to your poor health you have struggled in life at times, including financially, but that you have maintained a positive outlook and good sense of humour.
147She also refers to your role as a positive support for your mother.
148Your local pharmacist, Craig Jamieson, who has run a pharmacotherapy replacement program, has come to know you since 2015 when you started on the methadone program. He says his experience with you has always been positive. 'He is always polite, friendly and punctual'. You have never presented under the influence of substances and he says your ‘trustworthiness is reflected in [your] doctor’s permission to have six unsupervised takeaway doses of methadone'. I understand that privilege is not bestowed lightly. He says you are known to him and his staff, you have never caused any problems and 'nor has he witnessed an occasion where you have exhibited signs of anger or violence'. He described you as 'a kind, caring and intelligent man' and says you often have great insightful discussions and current affairs, sports and your personal and family life. He says these charges came as an absolute shock to him and they are out of character.
149I have also received a joint reference from Lorne and Annalee Jortikka. Their family have been next door neighbours with your mother for 25 years and have known you for about 10 years. They refer to your assistance to your mother in the maintenance of the house and also to them if needed, for example doing odd jobs. They report never having any problems with you and regard you as a good neighbour.
150Finally, I have a reference from Miles Dilmott. He met you and developed a friendship approximately three years ago. He describes you as 'kind and honest articulate and with a broad general knowledge'. In social settings he says 'you interact confidently with a range of personalities and ethnicities and are inclusive'. He also refers to your serious health issues.
151I take those references into account as I have described.
152In my view, your prospects of rehabilitation, Mr McKinnon, are moderate. You have a criminal history, although there are significant gaps in it. You have managed to comply with a number of previous court orders. Unfortunately, you have a recent relevant offence and, despite being required to complete an anger management course, this offending occurred thereafter and in my view is an escalation of your past criminal behaviour. Your full rehabilitation will depend on your relationship with alcohol and likely your ability to gain employment on your release.
Personal Circumstances – Richard Pears
153I turn now to your personal circumstances, Mr Pears. In assessing your personal circumstances, I have had the benefit of the submissions of Counsel, the psychological report of Ms Gina Cidoni dated 20 August 2024 and two medical letters, the first dated 2 November 2022 and the second dated 26 August 2024 and I have also received reference material.
154Mr Pears, you were born and raised in Birkenhead, England. Your father passed away when you were ten years old due to complications from deep vein thrombosis and tuberculosis. Your mother currently resides in York, England.
155You have half siblings from your parents’ previous marriages.
156You grew up in Liverpool, in a rough area where violence was the way to deal with conflict. You were raised by a single mother. You lived with her until you were 17.
157At the age of 18 you were assaulted from behind and bitten on the face while you were unconscious. That resulted in the loss of half of your left ear. This incident was reported to the police. For you it resulted in disturbed sleep, nightmares, hypervigilance and fearfulness.
158You completed secondary school in England. Your first paid job was a lab technician in the UK which lasted approximately six months. You then taught English in Thailand for two years and later completed a carpentry apprenticeship.
159From the ages of 17 to 20 you lived in a share house in Liverpool. When you were 22 you travelled to Thailand before returning to England for two years and then moving to Asia again. You moved to Melbourne in 2010 and you are now a permanent resident.
160Upon your arrival in Australia, you lived in hostels before you rented in Southbank and ultimately in Sunshine for three years.
161You were married to your ex-partner for seven years from 2011. After two years, her mother passed away from breast cancer. This added a stressor to your relationship and you took on the responsibility of caring for her siblings. That relationship ended in 2018 and it is clear from the material that that had been a difficult path.
162Following the end of that marriage, you were single for three years.
163You developed a drinking problem during the period of your marriage. That has been an ongoing problem for you and one which has intensified as a result of stress from the current charges.
164You report that in the past you would typically drink up to 12 cans of bourbon premix cans daily. You now average five Woodstock Bourbon 10 per cent cans a day which you say is more than you would like.
165You began smoking cannabis at the age of 12 in England and have dabbled with cocaine, however not since you left the UK and moved to Australia.
166You have had a past diagnosis of depression during your marriage and you experienced a period of suicidal ideation and self-harming behaviour during that time.
167According to Ms Cidoni, you exhibit features associated with major depressive disorder, including a persistently low mood, diminished interest in activities, and increased distress to external factors. However, you do not fully meet the diagnostic criteria for that disorder.
168She diagnoses you with alcohol use disorder. You have a desire to reduce your alcohol consumption, but you report being unsuccessful in this. Your alcohol use has led to recurrent issues such as decreased reliability at work. You have not taken any steps during the period of time on bail to seek professional help for that addiction.
169Sensibly, it was not suggested by Mr Barrera that your mental health was such as to enliven the principles of Verdins, however I accept, and I do take it into account generally when considering your personal circumstances.
170You currently work as a full time carpenter and I have received references from work colleagues. You have the support of Mr Dylan Clark, Mr Emanuele Iannone and Mr Mandher Sandhu and I have received character references from them.
171Mr Clark met you in 2012 via employment. He says in the 12 years you have known each other you have been through a lot together. He helped you through the traumatic relationship with your ex-wife and what he describes as your compounding grief in isolation afterwards. In turn, you have supported him through life’s unfortunate events.
172He describes you as being part of a busy team of workers, working tirelessly from sunrise to sundown. He describes you as a very hard worker, balanced in the face of adversity and someone who has taught him a lot over the years. He describes you as ‘intelligent, empathetic, hardworking, compassionate and an asset to [his] life and many others.’ Needless to say he was shocked to hear about this offending and states ‘that this behaviour is not normal’. He has never observed due to be cruel or unkind to anyone.
173Mr Clark describes you as resilient. Despite having a very tough run, your spirit has not been broken and you have overcome life’s curve balls. He describes your strength of character as rare.
174Mr Iannone works as a professional builder and carpenter and has done so for 30 years. He has been involved in working with you for two years and has been aware of these proceedings from their beginning. He is also aware of the guilty verdicts.
175He has known you for eight years and you and he have become close professionally and personally, working together successfully on projects. He describes you as 'one of the most honest, genuine, caring people that he knows, a good man with a good heart'.
176He says he was ‘horrified’ to learn of your offending. As these proceedings progressed he ‘noticed a decline in [your] attitude and mental health’. He says you have worked hard in life and have his upmost respect and support.
177Mandher Sandhu says he is volunteering an account of your character. You work with him at Ashmore group and have done so since May 2022. You are employed as foreman/lead carpenter. He refers to you as 'reliable and responsible, a lead face of the company, popular with clients and managing four apprentice carpenters'.
178Mr Sandhu describes observing a change in your attitude and demeanour in 2023 which correlates to your experience of these proceedings and your increase in alcohol use. As a result, your employment was terminated. You spoke to him about your situation, and he agreed to give you another chance on a probationary period with reduced hours. That period has now ended and you are again employed fulltime.
179He says that your offending was ‘completely out of character’, he ‘always treated everyone I know with respect and good manners in and out of work’. He says if he and his team did not know you to have good character, they would not have kept your position available including throughout the trial.
180I take your previous good character into account.
181You have no prior criminal history, although just prior to these events, you were engaged in an attempt to steal alcohol, I gather from a bottle shop. An off duty police officer intervened to stop you and you engaged in a struggle and were ultimately charged with unlawful assault. That matter proceeded in the Magistrates' Court on 17 August 2023 and you received a non-conviction 12 month undertaking with a condition that you pay $600. I am informed that you successfully navigated that undertaking, including the payment of the $600.
Risk of Deportation
182You, too, face the risk of deportation. You are a British citizen and are on a permanent resident visa. In the same way as for Mr McKinnon, I take that matter into account. I have no doubt that is a great stress to you, particularly in circumstances where you have a reasonably new relationship in Australia and where you have lived here since 2010 and also identify Australia as your home.
183You are in a supportive relationship with your current partner. You and she have been together for 12 months and you plan to move in together. She has been present throughout these proceedings. She is supportive of you and she hopes that you and she can start a family.
184You have suffered severe sciatica and you have an issue with your left knee due to a fall.
Prospects of Rehabilitation
185Ms Cidoni opines that your risk of violent reoffending is low to medium.
186She states that your prospects for rehabilitation will improve by you addressing your depressive symptoms and by managing alcohol use. Ongoing mental support and stress management will aid in supporting your rehabilitation, in addition to consistent support from your partner and maintaining your stable employment.
187I take into account in that regard that you were very much the follower in these events, and I accept the submission made by Mr Barrera that you recognise the impact of this offending on Mr Manning and that this was reflected in the way the trial was run on your behalf.
188It was not suggested by Mr Barrera that I could find any evidence of remorse on your part.
189In my assessment, given your lack of prior criminal offending, your work ethic and employment history and the support around you, your prospects of rehabilitation are positive. Alcohol is something you will have to address.
Plea of Not Guilty
190You both pleaded not guilty to this offending and opted to run a trial, which is your right. You were both found not guilty of a number of charges.
191The fact you ran a trial does not aggravate the offending or your personal circumstances in any way. Of course, Mr Manning and Mr Hucker were both required to give evidence at a committal and at the jury trial. They were both cross-examined and the minutiae of their lives trawled through in an effort to discredit them. That does not aggravate your sentence but is the reality for a victim when you have not accepted your offending.
192What your plea of not guilty and trial mean is that you do not receive the benefits which flow from a plea of guilty in recognition of its utilitarian benefit, or from the plea of guilty as an expression of remorse.
193Mr Pears, Mr Barrera submits that your offer to plead guilty to some offences did demonstrate some acknowledgment of your role in the offending. However, you declined to talk about your offending with Ms Cidoni, thereby not taking that opportunity to express remorse for your actions.
Parity
194I am mindful of the issues of parity when dealing with co-offenders. Parity is an aspect of equal justice. There should be no unjustifiable difference in sentences imposed upon similar offenders for similar offending.
195The key words are, 'unjustifiable difference'. That is because parity takes into account considerations of the offending and your roles in that offending. But it must also take into account your personal circumstances, which include your personal circumstances at the time, before and since. In that sense, equal justice may result in different outcomes.
196Parity is anything but straightforward in this case.
197Mr McKinnon, your counsel submits that a resolution of this matter was not possible as the prosecution was not open to compromise on the head charge of aggravated burglary.
198Mr Pears, you made a plea offer to trespass on 17 November 2023 and an offer of trespass and common assault on 28 February 2024. The sticking point again was the aggravated burglary. I understand and accept those submissions by both of your counsel.
199Both of your counsel referred to the sentence imposed on Mr Djurkovic. He pleaded guilty after a sentence indication was given not long before the trial date. He pleaded guilty to aggravated burglary and common law assault and received a sentence of three months on the aggravated burglary, five months on the common law assault, with one month cumulative, totalling six months' imprisonment plus a two-year community correction order.
200As I have said both of your counsel submit that resolution of your matters was not possible as the sticking point between defence and prosecution was the charge of aggravated burglary. They point out that that charge has a higher maximum penalty of 25 years' imprisonment. They both say you have been vindicated in your decision not to plead guilty to that charge.
201However, as Judge Mullaly’s sentence for Mr Djurkovic reflects, and as is established by case law, a charge of aggravated burglary is often eclipsed by what occurs inside the premises. A charge of aggravated burglary is complete on crossing the threshold. That offence can be made out, including the requisite intention, even though nothing in fact occurs once the offender is inside. However, often it is what happens inside which informs the seriousness of the overall offending. In my view, that is the case here.
202
In particular in relation to you, Mr McKinnon, your sustained assault of
Mr Manning, reflected in the charge of intentionally cause injury, is undoubtedly the most serious matter here, and would have been even in the face of a guilty finding for an aggravated burglary. In this case the objective gravity of the intentionally cause injury for you, Mr McKinnon, and the recklessly cause injury for you, Mr Pears, is much higher in my view than an aggravated burglary which would have been complete on crossing the threshold.
203To that end, I reject the submission therefore that I should view Mr Djurkovic's role as objectively more serious because he has pleaded guilty to aggravated burglary. What that means is that he admitted by his plea having formed the intention to assault Mr Manning prior to entering the premises. Once inside, his lesser role is reflected in the common law assault, although to my mind, that is similar to the role you, Mr Pears, played in the assault despite the fact you have been found guilty of recklessly cause injury. As Mr Barrera points out, both of those charges have the same maximum penalty, the difference being that you, Mr Pears, were aware of the probability of injury but continued your involvement nonetheless.
204In my view, and consistent with the way the prosecution put the case to the jury, Mr McKinnon is the most serious offender here. Mr Djurkovic and Mr Pears are largely on par for their roles in encouraging or assisting in the assault.
205
I note of course that the theft and robbery charges were not pursued against
Mr Djurkovic.
206
Parity therefore is difficult. The charges for each of you are different.
Mr Djurkovic received the benefit of his plea of guilty, although it was late, it saved the victims from the witness box and saved the time and cost of a jury trial.
207Mr Djurkovic I note was also a man of similar age and without prior criminal history
Delay
208I accept that the inability to reach resolution led to delay and that I should take that into account in sentencing both of you. Of course, resolution is a two-way street, however I accept that you have had more serious charges hanging over you for the considerable period of time since this offending in September 2022.
209I accept that neither of you have reoffended in that period, and I accept in relation to you, Mr Pears, that you have retained fulltime work.
Submissions of Parties
Mr McKinnon
210Mr Portelli submitted on your behalf, Mr McKinnon, that a combination of imprisonment with a CCO is appropriate in all the circumstances of your case, including your mental health, and in particular in light of the powerful feature of the risk of deportation.
211The Prosecution submit that your offending must be met by a head sentence and non- parole period. The Prosecution submits that this due to the prolonged nature of the attack on the victim in the night, in addition to the attack occurring in the sanctity of his home.
212
It is also submitted, and I accept, that specific deterrence is relevant to you,
Mr McKinnon.
Mr Pears
213In relation to you, Mr Pears, it was submitted by Mr Barrera that a CCO is appropriate and will address deterrence and denunciation while balancing rehabilitation.
214The Prosecution accept that while a CCO is warranted, it should be in combination with a term of imprisonment. Mr Gray reiterates the importance of the principles of general deterrence, denunciation, and just punishment.
Current sentencing practices
215I have had regard to current sentencing practices for this offending, having been assisted by counsel in their submissions and by a number of cases referred to by them.[2]
[2] Maximum penalties – for the charge of Intentionally Cause Injury a maximum of 10 years imprisonment; for the charge of Recklessly Cause Injury a maximum of 5 years imprisonment; for the charge of Theft a maximum of 10 years imprisonment plus mandatory licence disqualification or suspension; for the charge of Robbery a maximum of 15 years imprisonment.
216I have also considered the summaries contained in the Judicial College of Victoria Sentencing Manual.[3] I have also had regard to s6AAA declarations.
[3] Turney v The Queen [2020] VSCA 131; R v Lacey [2006] VSCA 4; Magee v The King [2023] VSCA 80; Fonau v The King [2022] VSCA 213
217As always, there are similarities and differences between both offending and offender. In particular in charges relating to assaults and causing of injury, the factual circumstances vary widely and can be committed in a range of settings. Here, you were in Mr Manning’s home, late at night, in company. The assault was prolonged and violent and his injuries were at the upper range for a cause injury charge.
218Ultimately, I am required to impose a just sentence in all the circumstances before me and that is what I have endeavoured to do.
Sentence
219The sentence I impose will be as follows.
220Mr McKinnon, I accept the prosecution submissions that the nature of your offending, and particularly your role in it, in the context of the broader circumstances of your grievance with Mr Manning and the fact this is vigilante behaviour committed against a person in their home, can only be met by a term of imprisonment that involves a head sentence and non-parole period. That is particularly so when you have a prior conviction for a charge of intentionally cause injury not long before this and, as I have described, where you attended the house late and alcohol affected. Your decision once inside to commit the sustained attack on him, must be condoned in the strongest terms.
221The sentence on Charge 2 of intentionally cause injury will be the base sentence. In relation to cumulation, the property offences are quite separate from that charge and I intend to impose cumulation on the base sentence. In my view, the robbery is the more serious of the property offences given it is a theft caused by demands and violence. I reach that conclusion despite the fact that the theft of the car relates to a more valuable item, noting of course that the keys the subject of the robbery were required to effect the theft of the car. In that sense they are interrelated, and I will impose modest cumulation as a result.
222Can I just check again, Mr Gray, the licence disqualification. Can you just remind me – that is mandatory on the theft of the car?
223MR GRAY: Yes, Your Honour. For the car theft, there is - - -
224HER HONOUR: It is mandatory if I do not - - -
225MR GRAY: It's mandatory to impose a licence disqualification or cancellation – sorry, or suspension, either one, in this case. However, on conviction, and there's been a conviction by a jury, but if Your Honour doesn't state a period, then it is three months. However, Your Honour is free to impose a licence suspension or disqualification for –well it's a matter for Your Honour.
226HER HONOUR: Okay.
227MR GRAY: So you could impose two days, you could impose whatever, but if you don't say or particularise, then three months.
228HER HONOUR: Thank you. Thanks very much. Just give me a moment.
229Mr McKinnon, the sentence I impose will be as follows. On Charge 2 of intentionally cause injury, you are convicted and sentenced to three years and eight months' imprisonment. On Charge 4 of theft, you are convicted and sentenced to two years' imprisonment. On Charge 5 of robbery, you are convicted and sentenced to two years and four months' imprisonment. I direct that the sentence imposed on Charge 2 is the base sentence.
230I make the following orders for cumulation. Three months of Charge 4 and six months of Charge 5 will be served cumulatively on each other and on the base sentence. The total effective sentence, Mr McKinnon, is four years and five months' imprisonment.
231I direct that you are to serve a minimum term of three years' imprisonment before becoming eligible for parole.
232I declare that you have served 146 days' pre-sentence detention and that that period should be reckoned as having been served under this sentence.
233In relation to Charge 4, there is mandatory suspension of disqualification of your driver's licence. I propose to disqualify you from driving for a period of two years.
Pears - Sentence
234Mr Pears, I have had you assessed for a community correction order. The assessor determined you are a moderate risk of reoffending. You are assessed as suitable for a community correction order.
235Despite your involvement in this serious matter, I have concluded that a combination of imprisonment and a community correction order is warranted in your case for the reasons relied on by Mr Barrera, namely your lesser role, your prior good character and lack of subsequent offending, your fulltime employment and good employment history, the support of your work colleagues who are aware of this offending, the risk of deportation and your stable relationship with your partner.
236My conclusion that the community correction order must be served with a term of imprisonment is due to the nature of the offending, in particular your active involvement by way of the recklessly cause injury charge and in the making of demands and threats to take the car and keys and that these acts occurred late at night in the victims' home. I do not accept that all principles of sentencing can be met by a community correction order alone in the face of those matters.
237The sentence I impose, Mr Pears, will be as follows.
238On Charge 3 of recklessly cause injury, you are convicted and sentenced to eight months' imprisonment and in addition to a community correction order of two and a half years. I will return to the conditions of that order.
239In relation to Charges 4 and 5, you are convicted and I impose a community correction order on those charges. That order will be one of two years.
240In relation to the community correction order imposed on Charge 3, recklessly cause injury, the conditions of that order will be as follows. You are to be under supervision. You are to perform 150 hours of unpaid community work. You are to undergo treatment for alcohol addiction. You are to undergo treatment for mental health and on the recommendation of the community correction assessor you are to undergo treatment for other programs as directed by Corrections Victoria. In addition, I order that up to 75 hours of treatment can be offset against the community work hours. So in other words, the more treatment you do, the less the community work you will need to do.
241Before I can impose that order, I require your consent to do so, Mr Pears. Before I ask you if you consent to undertake that order, I need to ensure you are aware that any breach of that order would result in this matter coming back to me and you would be liable then for re-sentencing on the current charges. Do you understand that?
242OFFENDER PEARS: I'm aware, Your Honour, and I consent.
243HER HONOUR: All right. Do you also understand that a breach can be constituted either by reoffending or by failure to comply with those conditions I have outlined? Sorry, say that again.
244OFFENDER PEARS: I do, I understand.
245HER HONOUR: All right, thank you. Do you consent to undertake that community correction order?
246OFFENDER PEARS: I consent, Your Honour.
247HER HONOUR: All right. Now I have also imposed a second order which will really run concurrently, so they will run together. The second community correction order is a two-year order on the theft and robbery charge. The conditions in relation to that order will be that you will be under supervision and that as directed any treatment for alcohol addiction. So, in other words, there will be overlap between the two orders. Do you consent to undertake that second order?
248OFFENDER PEARS: I consent, Your Honour.
249HER HONOUR: All right, thanks very much. I declare that you have served five days' pre-sentence detention and that that period should be reckoned as having been served under this sentence.
250Finally, I make the forfeiture order in relation to you, Mr McKinnon, noting that that is made with your consent. I will just give counsel a moment to check those figures please.
251MR GRAY: Yes, it's correct, Your Honour.
252HER HONOUR: Thank you. Mr Portelli or Mr Barrera, any issues to raise?
253MR PORTELLI: No, Your Honour.
254MR BARRERA: No, Your Honour.
255HER HONOUR: All right, thanks.
256MR GRAY: 6AAA, Your Honour?
257HER HONOUR: It is a trial.
258MR GRAY: Did Your Honour, did you do it?
259HER HONOUR: It is a trial.
260MR GRAY: I'm sorry, of course it is.
261HER HONOUR: That is all right. It is a habit we all have.
262MR GRAY: Oh dear, I apologise for that.
263HER HONOUR: All right. Thanks very much counsel to all of you for your assistance in this matter. We will now adjourn.
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