Director of Public Prosecutions v McKinnon
[2022] VCC 522
•12 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00017
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BAYDEN McKINNON |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 April 2022 | |
DATE OF SENTENCE: | 12 April 2022 | |
CASE MAY BE CITED AS: | DPP v McKinnon | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 522 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Criminal damage – Make threat to kill – Prohibited person in possession of firearm – Persistent contravention of a Family Violence Intervention Order – Attempt to pervert course of justice – Contravene conduct condition of bail – Commit indictable offence on bail – Relevant prior criminal history – Delay – Time served – No non-parole period fixed – COVID-19 pandemic
Legislation Cited: Crimes Act 1958 ss 20, 197(1) ; Firearms Act 1996 s 5; Family Violence Protection Act 2008 s 125A; Bail Act 1977 ss 30A(1), 30B; Sentencing Act 1991 ss 6AAA, 18, 44.
Cases Cited:The Queen v Healy (Victorian Court of Appeal, Charles JA, 4 August 1997); Worboyes v The Queen [2021] VSCA 169; Williams v The Queen [2018] VSCA 171.
Sentence: Imprisonment for a period of 21 months and community correction order with conviction for a period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Trevor Wallwork | Office of Public Prosecutions |
| For the Accused | Mr Simon Kenny | Pica Criminal Lawyers |
HIS HONOUR:
Introduction
1Bayden McKinnon, you have pleaded guilty to:
(a) one charge of criminal damage contrary to s 197(1) of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 10 years imprisonment (Charge 1);
(b) one charge of make threat to kill contrary to s 20 of the Crimes Act, which carries a maximum penalty of 10 years imprisonment (Charge 2);
(c) one charge of prohibited person possess a firearm contrary to s 5 of the Firearms Act 1996, which carries a maximum penalty of 10 years imprisonment (Charge 3);
(d) one charge of persistent contravention of a Family Violence Intervention Order contrary to s 125A of the Family Violence Protection Act 2008, which carries a maximum penalty of 5 years imprisonment (Charge 4); and
(e) one charge of attempt to pervert the course of justice contrary to Common Law, which carries a maximum penalty of 25 years imprisonment (Charge 5).
2You have also pleaded guilty to the related summary offences of:
(a) contravene conduct condition of bail contrary to s 30A(1) of the Bail Act 1977 (‘Bail Act’), which carries a maximum penalty of 3 months imprisonment (Summary Charge 8); and
(b) commit indictable offence on bail contrary to s 30B of the Bail Act, which carries a maximum penalty of 3 months imprisonment (Summary Charge 9).
3You have also admitted your Criminal Record.
Circumstances of the offending
4A prosecution opening was tendered on the plea and may be summarised as follows:
5You were aged 28 years at the time of the offending.
6You and Rhiannon Ogilvy[1], aged 29 years, have been in a relationship for approximately 11 years. You have three young children from this relationship, aged five years, two years and 9 months.
[1] A pseudonym.
7You and Ms Ogilvy are separated. As a result, a Family Violence Intervention Order was granted by the Court on 22 September 2020 (this Order did not contain a non-contact condition).
8Despite being separated, you were staying at the same address as Ms Ogilvy, at a property in Maddingley, at the time of these offences. Ms Ogilvy states that you had been attending at her address since 13 February 2021 and also stayed the night on 17 February 2021. She had told you to leave the address on several occasions, but you refused to do so. Ms Ogilvy states that your behaviour was erratic at this time, and that you appeared to be paranoid.
9On 18 February 2021, Ms Ogilvy left her address at 9.30am. At approximately 6.00pm that day, you contacted her asking where she was, and threatened to damage her car if she did not return home.
10At approximately 9.20pm, you knocked on a neighbour’s door. You asked the neighbour, ‘do you have someone here?’. You were invited in, but stated that you needed to get something first.
11The neighbour asked you where ‘Rhia’ was (referring to Ms Ogilvy), and you replied ‘I don’t know hopefully dead’ and ‘they’re all going to die tonight, I’m going to kill ‘em’.
12At approximately 9.55pm, you returned to the above address. The neighbour observed you to be holding a firearm, which she described as a ‘double barrel shotgun’. The neighbour told you that you were not bringing the firearm into her house. CCTV obtained by investigating police show you walking in the street holding the firearm beside your body. This firearm has not been recovered by investigating police. This forms part of Charge 3 – prohibited person possess a firearm.
13You asked the neighbour to drive you to Ballarat, but she refused. She observed you to be agitated at this time. You stated ‘they’re all dogs Rhia and Macca[2] can all get fucked’ (a reference to Ms Ogilvy and Jackson McDonald[3]). The neighbour then collected her car keys and got into her vehicle with you. When the neighbour asked what had happened, you stated ‘they’re all dogs they don’t share’ and ‘I’m done with all of them, I’m done with Ballarat. I’m going to kill them tonight, you watch it’s all going to happen. I’m going to shoot them both’. The neighbour was fearful for her safety, and the safety of Ms Ogilvy and Mr McDonald as a result of your threats and possession of a firearm. It is these facts that relate to Charge 2 – make threat to kill.
[2] A pseudonym.
[3] A pseudonym.
14The neighbour then drove you back to your address and returned home. she text messaged Ms Ogilvy and Ms Ogilvy telephoned her back. The neighbour informed Ms Ogilvy as to what just happened and Ms Ogilvy told her to call police as she feared you would kill her. The neighbour telephoned ‘000’.
15Investigating police attended and arrested you on the street.
16When the address at Maddingley was searched, you led investigating police to a firearm (described as a ‘slug gun’) in the main bedroom partially hidden underneath clothing. You are a ‘prohibited person’ under the relevant Act as you are subject to an operating Family Violence Intervention Order. The seized firearm was photographed. This forms part of Charge 3 – prohibited person possess a firearm.
17Ms Ogilvy returned to the address and spoke to investigating police. Ms Ogilvy noted that there was damage to the door of a rental vehicle parked in the driveway. This vehicle belonged to Rix Nominees Pty Ltd. In an earlier telephone conversation with Ms Ogilvy, you had threatened to damage this vehicle. It is these facts that relate to Charge 1 – criminal damage.
18On 19 February 2021 you were charged with the above offences and remanded into custody. The Court granted a variation to the Family Violence Intervention Order to include a condition as to non-contact.
19Your conduct committed on 18 February 2021, namely threatening to, and then causing, damage to the car rented by Ms Ogilvy, constituted a contravention of the Family Violence Intervention Order that had a condition not to commit family violence. Whilst in custody, you also contacted Ms Ogilvy on five occasions between 25 February 2021 and 4 March 2021 in contravention of the ‘non-contact’ condition of the order. It is these facts that relate Charge 4 – persistent contravention of Family Violence Intervention Order.
20On 25 February 2021, you had a telephone conversation with Ms Ogilvy. You stated ‘Is it hidden. Do not sell it’. Ms Ogilvy replied that it is hidden.
21On 26 February 2021, you had a telephone conversation with Ms Ogilvy. You asked Ms Ogilvy whether your mother had told her where the ‘thingo’ was. Ms Ogilvy stated another person did.
22On 28 February 2021, you had a telephone conversation with Ms Ogilvy. Ms Ogilvy stated that police had searched her premises on several occasions looking for the missing thing. In response, you stated ‘Fuckin’ dogs. They’ll never find it’.
23On 2 March 2021, you had a telephone conversation with Ms Ogilvy. You stated to Ms Ogilvy to make sure to ‘keep that thing buried’.
24On 4 March 2021, you had a telephone conversation with Ms Ogilvy. Ms Ogilvy stated that ‘Jackson sold it’.
25On 10 March 2021, you had a telephone conversation with an unknown male. During this conversation the unknown male said he was told you were ‘run(ning) up and down the road with a gun or something’, to which you responded ‘Nuh. I had one on me but lucky they didn’t find it, I’d handed ‘em – I handed ‘em a spud gun’. You later stated ‘Nuh, fuck ‘em, they won’t – won’t even find it’.
26The Prosecution case is that the above conversations relate to the firearm that you took to the address of the neighbour on 18 February 2021 and which was not located by investigating police.
27Whilst in custody, you also contacted Ms Ogilvy on three occasions between 28 February 2021 and 4 March 2021 requesting she speak to the neighbour about changing her statement. It is these facts that relate to Charge 5 – attempt to pervert the course of justice.
28On 28 February 2021, you had a telephone conversation with Ms Ogilvy, In this call, you stated:
You: Talk to fucking [the neighbour], she has to take the – back the fuckin’ statement. Ogilvy: She what? You: She has to take it back. Ogilvy: Ok, ok. You: I’m gunna fuckin’ dead set get out and fuckin’ dead set … Ogilvy: Ok, ok.
…Ogilvy: Yeah. I’ll sort, I’ll sort. You: She has to.
…You: Take back the threat to kill, at least, all right? 29On 2 March 2021, you had a telephone conversation with Ms Ogilvy. In this call, you stated:
You: … Have you spoke to [the neighbour]? Have you spoke to [the neighbour]? Ogilvy: I – no – I haven’t …
…You: Go and fucking …. Ogilvy: … spoken to her yet. You: … speak to her [the neighbour], tell her I’ve got a photo of her on the piss, if she doesn’t go in there and change her fuckin’ statement, I’m gunna send it to her boss when I get out, and she – and they’ll send it to DHS. Ogilvy: Yeah.
…You: … fuckin’ make sure you talk to [the neighbour]. Go and do it today. I mean it. Ogilvy: Yeah, I will. You: Tell her I’ve got a photo, and tell her … Ogilvy: Ok. 30On 4 March 2021, you had a telephone conversation with Ms Ogilvy. In this call, you stated:
Ogilvy: I – done that. You: Hey? Ogilvy: She reckons that – she said cops are making her get an intervention order, and even if she drops it, they’ll proceed with it anyway. You: No. You have to tell her to change … Ogilvy: Yeah. I …
You: … the fuckin’ statement, that I didn’t make a fuckin’ threat. That’s all. I didn’t … Ogilvy: So … You: … make a threat. 31On 13 February 2021, you had been released on bail with conditions in relation to charges of burglary, theft, criminal damage and handle stolen goods. The conditions contained a residential address at Old Carton Road, Gordon and a curfew condition to remain at that address between 10pm and 6am.
32You committed the above indictable offences whilst subject to this bail undertaking. It is these facts that relate to summary Charge 9 – commit indictable offence on bail.
33You were arrested by investigating police on 18 February 2021 at a different address outside your curfew hours. It is these facts that relater to summary Charge 8 – contravene conduct condition of bail.
34On 19 February 2021, you declined to be interviewed by investigating police.
Nature and gravity of the offending
35In the days leading up to 18 February 2021, Ms Ogilvy had told you to leave her home on several occasions. Ms Ogilvy observed you during this period and said that your behaviour was erratic and you appeared paranoid. The neighbour, after observing you holding a firearm, said you were agitated. Understandably, she was very concerned and fearful for her own safety and that of Ms Ogilvy and Mr McDonald.
36On your own admission you said that you were using two grams of ice daily in the period leading up to this offending. On the actual day of the offending, you were affected by drugs, you were angry and you made very serious threats directed towards Ms Ogilvy and another person to the effect that you were going to kill them that evening. While making these threats you were holding a shotgun. For the neighbour, this would have undoubtedly been a terrifying experience. In the circumstances I view your conduct as a serious example of making a threat to kill.
37The firearm you were holding as you were making the threat to kill and the possession of the air rifle which was later found, are rolled up in Charge 3. You were, at the time a prohibited person as a result of the intervention order with Ms Ogilvy. In relation to the air rifle, it was submitted on your behalf that the air rifle was not operable, however the prosecution did not formally test it. The shotgun that you had in your possession at the time you made the threat to kill has not been recovered and it is clear from the intercepted telephone calls above that you were aware that the police were looking for it and you were able to easily dispose of it. While I accept that there is no evidence that you possessed either of the weapons for a criminal purpose prior to this specific offending, it is clear that you were mixing in circles where you were able to access and later dispose of a weapon that you were prohibited from possessing.
38After you were remanded in custody the intervention order was varied to include a non-contact condition. Despite this variation you contacted Ms Ogilvy on five occasions which forms part of the particulars in relation to Charge 4. Further, on three of those calls you requested that Ms Ogilvy speak with the neighbour about changing her statement, giving rise to Charge 5 – attempt to pervert the course of justice.
39Attempt to pervert the course of justice is an inherently serious offence which is reflected in the maximum penalty of 25 years imprisonment. It is an act that is designed to interfere with the administration of justice, which depends upon the system operating so that people who commit crimes are held to account. As Charles JA noted in The Queen v Healy, those that interfere with that process commit a disservice to the community.[4]
[4] The Queen v Healy (Victorian Court of Appeal, Charles JA, 4 August 1997).
40In this instance, while the offence does not involved physical threats or direct contact with the neighbour, you threatened to expose the neighbour to her employer and the DHS with a compromising photo in order to subject her to some kind of consequence. Thus while the offending is not in the most serious category, it had a nasty flavour and was more than just a simple request to alter a statement.
Victim Impact Statement
41The neighbour prepared a victim impact statement that was tendered at the plea.
42As she requested that her statement not be read in court I will not reproduce any of its content in these sentencing reasons. However, I acknowledge that I have read the statement and have taken into account its contents including the ongoing adverse psychological impact your offending has had on her.
Personal circumstances
43You are 29 years of age. Your parents separated before you were born and you were raised by your mother in Ballarat. Despite the separation you have enjoyed a positive relationship with your father and you have maintained a close relationship with your mother and stepfather.
44You attended St Patrick’s College in Ballarat leaving after Year 9. You completed 18 months of an electrical apprenticeship before working as an asphalter, gaining employment with Premier Cranes where you obtained a number of qualifications to operate various machinery. You moved to a new company in 2020; however, as a result of the pandemic resulting in a dispute over pay, you lost your employment. You partner Ms Ogilvy also lost her job during this period.
45You met Ms Ogilvy when you were 18. You have three daughters together, aged six, three and nine months. As a result of your remand you have not yet seen your youngest daughter.
46You and Ms Ogilvy purchased a house in Bacchus Marsh which has a substantial mortgage. No repayments have been made for a number of months and you are concerned about losing the home. Ms Ogilvy is also currently in custody; however, you are allowed to speak with each other by phone. You plan to resume the relationship upon your release. The children are in the care of Ms Ogilvy’s family.
47As to your drug history, you began smoking cannabis in your early teens. Following school you began to use ecstasy and amphetamines. By the age of 17 you had developed a significant drug problem which ultimately led to you being detained in 2013 in relation to offending that in included robbery and intentionally causing injury charges.
48You report that at the time of this offending you were drug affected and were using up to two grams of methamphetamine daily. You were also using GHB and cannabis intermittently.
49A report prepared by Jeffrey Cummins, forensic psychologist, dated 16 February 2022 was tendered on the plea. Mr Cummins proved a detailed history and also conducted a mental state examination, including a risk assessment. He notes that you presented as being mildly anxious and mildly depressed. You acknowledged to Mr Cummins that you have a problem with anger and Mr Cummins assessed your risk of committing a further violent offence as ‘moderate’.
50Mr Cummins is of the view that you will require intensive supervision and drug relapse prevention assistance upon your release. He is also of the view that you need to participate in an intensive anger management program or men’s behavioural change program.
51Three references were tendered. The first from a long term neighbour, Vanessa Stevenson, the second from your step-father, George Leaman, and the third from your mother Elizabeth Leaman. Ms Stevenson and your mother both make a similar observation - that if you were not addicted to ice, you would not have behaved in the way you did on the evening of the offending. Your mother states that you are truly sorry for your conduct and it is clear from letters from your mother and stepfather that they will continue to offer you their full support upon your release as you reintegrate back into the community.
52A number of certificates were tendered in relation to courses you have completed in custody, including courses related to parenting. You have enrolled in a drug and alcohol course. However, due to the restrictions as a result of the pandemic, that course is yet to be conducted. You have also been working in the laundry at the prison where you are remanded.
Sentencing considerations
53Mr Kenny who appeared on your behalf highlighted a number of matters to be taken into account in mitigation.
54First is your plea of guilty. The matter resolved in January 2022 prior to a contested committal hearing. As such no witnesses were cross examined. In the circumstances your plea is able to be considered as an early plea. Your plea has saved court time and expense and has spared the witnesses from having to give evidence. Your plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea has been entered in circumstances where the pandemic has created a substantial backlog of cases in the criminal justice system.[5]
[5] Worboyes v The Queen [2021] VSCA 169 at [39].
55As to remorse, while you have expressed to your mother that you are sorry, I note the comments of Mr Cummins as follows:
In my opinion Mr McKinnon’s expressions of remorse and victim empathy at interview were limited and he unquestionably requires therapeutic input to assist him to develop more victim empathy and a better sense of remorse regarding his offending. Nonetheless, at interview he did not speak in an antisocial or anti-authoritarian manner.
56Having read the full report of Mr Cummins, I accept his opinion. However having also read the letters from your parents and long term friend, in my view you are beginning to gain insight into the destructive nature of your drug use and its impact on those closest to you. In the circumstances I accept that you have demonstrated a degree of genuine remorse.
57Mr Kenny submitted that your prospects of rehabilitation are good. He submits that you have a strong motivation to reunite with Ms Ogilvy and your children, and to become a contributing member of the community again. You have a limited but relevant criminal history and you have strong family support. Undoubtedly, your prospects depend largely on you being able to rid yourself of your drug addiction and to learn strategies to prevent relapse.
58Deterrence, both general and specific are relevant sentencing considerations. Denunciation of your conduct must also be given weight in the sentencing calculus. Given the nature of the offending, together with the views of Mr Cummins, that you require ‘intensive supervision’ in the community, in my view community protection is also a relevant sentencing consideration in this instance. You acknowledge that you have a problem with anger and you also have an appreciation of the dangerous combination of anger when under the influence of methamphetamine. As noted by Mr Cummins, it is imperative that you participate in intensive anger management or a men’s behavioural change program.
59I take into account that you have served your time on remand during the COVID-19 pandemic where prisoners have been subject to a number of restrictions. Further, I take into account that while on remand your youngest child was born and you have not yet had physical contact with her.
60Mr Kenny submitted that a combination sentence pursuant to s 44 of the Sentencing Act 1991 would be able to provide you with supervision and treatment programs within the community upon your release from custody while still addressing the relevant sentencing considerations. Mr Wallwork who appeared on behalf of the Director of Public Prosecution, accepted that a combination sentence is within the available sentence range.
61I had you assessed for such an order and you have been found suitable. In my view a combination sentence is able to be structured to address the relevant sentencing considerations while providing you with the assistance and incentive to rebuild your life upon your release from custody. The community correction order will also provide a level of supervision in the community while you engage in treatment to address your drug and alcohol use and undertake programs to reduce the risk of reoffending.
62While your offending is serious and would ordinarily call for a sentence of imprisonment with a non parole period, I note the decision of Williams v The Queen,[6] where the court consisting of Priest JA and Hargraves JA said:
As was made clear in Boulton, in an appropriate case a CCO provides a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. A CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re-offending by promoting the offender's rehabilitation. And although as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, a CCO may remain open, even in cases of very serious offending.[7]
[6] [2018] VSCA 171.
[7] At [47].
Sentence
63Mr McKinnon, please stand.
64Bayden McKinnon on Charge 1, criminal damage you are convicted and sentenced to 1 month imprisonment. On Charge 2, make threat to kill, you are convicted and sentenced to 18 months imprisonment. This will be the base sentence. On Charge 3, prohibited person possess firearm, you are convicted and sentenced to 18 months imprisonment. On Charge 4, persistent contravention of a family violence intervention order, you are convicted and sentenced to 8 months imprisonment. In relation to Charge 5, attempt to pervert the course of justice, you are convicted and sentenced to 10 months imprisonment.
65On Summary Charge 8, contravene conduct condition of bail and Summary Charge 9, commit indictable offence on bail, you are convicted and sentenced to 1 month imprisonment on each charge.
66I direct that 2 months of the sentence on Charge 3 and 1 month of the sentence on Charge 5 be served cumulatively on each other and on the sentence imposed on Charge 2 making for a total effective sentence of 21 months imprisonment as the prison component of the sentence pursuant to s 44 of the Sentencing Act 1991.
67Upon your release from custody, you will be placed on a community correction order with conviction for a period of 2 years. You will be subject to treatment and rehabilitation conditions to address your drug and alcohol use and your offending behaviour. You will also be subject to supervision for the period of the order.
68Pursuant to s 18 of the Sentencing Act 1991, I declare that 418 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
69Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty, I would have sentenced you to 3 years and 6 months imprisonment with a non-parole period of 2 years and 3 months.
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