Director of Public Prosecutions v McLachlan
[2015] VCC 1164
•20 August 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTIONCR-15-00322
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KEENAN MCLACHLAN |
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| JUDGE: | HIS HONOUR JUDGE HOWARD |
| WHERE HELD: | Latrobe Valley |
| DATE OF HEARING: | 18 August 2015 |
| DATE OF SENTENCE: | 20 August 2015 |
| CASE MAY BE CITED AS: | DPP v McLachlan |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1164 |
REASONS FOR SENTENCE
---Catchwords: CRIMINAL LAW – sentence following pleas of guilty to assault, intentionally causing injury, rape and stalking – serious example of relationship violence – TES 8 years with 5 and a half years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. O'Doherty | OPP |
For the Offender | Ms S. McCrickard | VLA Morwell |
HIS HONOUR:
1Keenan Sinclair McLachlan; you have pleaded guilty to a number of serious offences committed against a former partner who wanted to end a sexual relationship with you. They are: common assault (charge 1) of which the penalty is at large; two charges of intentionally causing injury (charges 2 and 3), the maximum on each is ten years' imprisonment; rape (charge 4), the maximum is 25 years' imprisonment; and stalking (charge 5), the maximum is ten years' imprisonment.
2I must sentence you now on behalf of the community.
Circumstances of offending
3
The circumstances of your offending are set out in an agreed, comprehensive prosecution opening, which was read out in court. The offending first occurred between August and December 2013, then between
12 and 26 April 2014. You were 28 and the victim was 31.
4In April 2013, you met through a mutual sporting activity. The victim was living in a long term but problematic de facto relationship and had a seven year old child. Apparently she had not had sexual intimacy with her partner for many years. A sexual relationship started between you, but to the victim's partner, and others, you just pretended to be friends. The victim made clear to you that she had no intention of leaving her partner. Initially you accepted this, but ultimately you felt you were in love with the victim, although she did not reciprocate your feelings.
5You became frustrated and angry at the victim's lack of commitment towards you, and jealous of any contact she had with her partner and other males. You became increasingly controlling of, and verbally, then physically abusive towards the victim. In this context she attempted to end the relationship, but you responded by threatening to reveal its existence to her partner. She did not want this, and although she then feared you and felt trapped in the relationship, she continued with it.
6
Turning now to the first of the offences, charge 1. On a date between
31 August and 31 December 2013 you were intoxicated. During an argument with the victim you picked her up and threw her against a wall a number of times. She was present in court for the plea hearing - and is present today - and it was obvious she was much lighter and smaller than you. This assault resulted in substantial pain, and bruising to the victim's back. This incident resulted in you enrolling in a course to deal with anger management and violence against women. Obviously this did not deter you from continuing to offend against the victim.
7
The next three charges, charges 2, 3 and 4, concern events on
Sunday 13 April 2014. You were intoxicated again when you visited the victim's home that day. You verbally abused her in the presence of her partner, and it was agreed she would take you home in your car. After you commenced your journey you verbally abused the victim again. She stopped the car. You got out then dragged her from the driver's seat, threw her onto the ground and bit her on the face. She calmed you down and the journey continued, but you continued your verbal abuse so she stopped the car again. You then grabbed her by the throat and started choking her. She tried to push you away but you grabbed her arm and twisted it up her back, which caused her substantial pain, then you dragged her out of the car and threw her onto the ground again.
8Eventually you calmed down and the journey continued again, but this time the victim drove to a police station, as she was in immediate fear of you. When she tried to enter the station you grabbed and bit her arm. She believed you were trying to tear off her flesh, and was in substantial pain. Then you bit her thigh; again causing substantial pain and bruising. You would not let go and held her there for some time. Eventually she got out and spoke to police. You returned to your home in the meantime. Charge 2 encompasses all the assaults that occurred on this journey.
9After the victim left the police station, she realised she had left her phone in your car. She went to your home to retrieve it. On her arrival you verbally abused her then repeatedly threw her onto a wall. You threw her on the ground a number of times and jumped on her with your knees. You kicked her and bit her face a number of times. At one point you had her on her stomach and tried to pull her head and legs back so they touched, then you threw her out a window and her legs went through it and you kicked her again whilst she was on the ground. All the time you verbally abused her. As a result of your conduct the victim received bruising and experienced substantial pain. Charge 3 encompasses all the assaults occurring at your home on that evening that I have just described.
10The final charge on 13 April 14 is one of rape, charge 4. After your attack on the victim you tried to pull off her jeans. She told you to stop but you replied, "I'm going to fucking rape you". You continued to repeatedly hack at her jeans until they were literally ripped to shreds. All this time she was telling you "don't" but you just ignored her. You threw her on your bed, called her a "slut" and dragged off her underwear, ripping it in half in the process. You then thrust your hands towards her vagina. She jumped back and tried to kick you and told you to "fuck off". You replied, "feels like you want it to me", and touched your groin, then you threw her on the ground, grabbed her hair and bit her face, and continually threw her around the room.
11Not surprisingly, the victim feared for her life. She scratched you so that your skin would be found under her fingernails if she were to die. She hit you on the head with a fan. You paused, but for a moment, then threw yourself on top of her on the bed and bit her on the face and buttock. As a result she experienced substantial pain, teeth marks on her face and bruising and swelling of her buttocks.
12After this there were periods when you cried, professed love, demanded to know why she was hurting you, and then subjected her to further violent rages. The victim unsuccessfully tried to lock you out of your house, but you carried her back to the bedroom, grabbed her face very firmly with both hands and spat in her face. The next moment you were demanding that she hug and console you; which she reluctantly did. You apologised for your behaviour then started to touch her sexually and demanded sex. She pushed your hands away and told you she did not want to have sex with you. You responded by assaulting her again, followed by you crying and begging her to hug you, then to have sex. She refused again, but eventually relented, as she thought it would be the only way she could get away from you without further injury.
13You then had penile-vaginal intercourse without a condom for about five minutes. At one point you bit her on the face and demanded that she "get into it". You then moved her into different positions whilst penetrating her, until you eventually removed your penis and went to the bathroom, where you ejaculated. After this she told you she was not on any contraception, and feared becoming pregnant, you told her you had not left anything inside her.
14After you raped her you had a discussion and you both agreed to end the relationship. Instead of doing this you stalked the victim over the next two weeks (charge 5). This stalking conduct consisted of the following behaviour:
·Over the next week you sent multiple text messages to the victim - 60 to 80 per day - declaring your love for her. This led to the victim getting a new phone.
·On 22 April, you covertly entered her home and surprised her when she was coming out of the bathroom, only covered by a towel. You grabbed her by the arm and repeatedly apologised for your behaviour on 13 April, then asked her for sex. She refused. Eventually the two of you left the premises in separate cars.
·The next day, 23 April, you parked outside the victim's neighbour's property for seven hours, until 1 am, and continually texted her; declaring your love and apologising for your conduct, and asking her to come outside. You texted on her new phone number, which you apparently accessed at her place the day before.
·On 25 April, you continued to message the victim and she eventually agreed to meet with you to discuss, and hopefully pacify the situation. The plan was to go to a hotel but you said you were sick and drove to your home, much to the discomfort of the victim. When you got there she told you the relationship was only one of friendship, but you snapped: "Fucking hell. You're my missus, not my friend," and told her you would only take her home if she had sex with you. She did not want the situation to turn violent and wanted to get home, so she agreed and had intercourse with you.
·The next day, 26 April, the victim went to your home with a girlfriend. It is not clear to me why she did this. You were angry she arrived with a friend and stopped her from leaving by blocking her car with yours. You verbally abused her and punched a wall in an agitated state. Eventually the victim called her partner, who came and picked her and the other woman up, and they departed.
Police and court process
15
The following day, 27 April 2014, the victim made complaint to police and you were arrested that night. Photos of the victim and your premises revealed the existence of extensive bruising on her body, of her torn clothing (which was found by police in your home) and damage to different parts of your home - all confirmatory of the assaults and rape of the victim by you on
13 April and the blocking of her car on 26 April. You were interviewed and made partial admissions of the assault in 2013, the anger management course you undertook, and of some assaults on 13 April.
16The victim had indicated to police she did not want to pursue any sexual charges against you, and you claimed there had been consensual intercourse. The victim returned to police on 8 May 2014 and made a further statement about your rape of her. Police then interviewed you about this on 15 May, but you made a "no comment" response.
17Police recovered a number of text messages which supported the victim's account of your harassment of her in that way.
18You were charged with offences after being first interviewed and have been held in custody since then to the present; no bail application having been made by you, which I understand was the result of a conscious decision on your part. There is now 480 days pre-sentence detention up to, but not including, today.
19You pleaded guilty to the charges at committal proceedings on 26 February 2015, which is to be treated as occurring at the earliest time.
Victim impact
20I have received a victim impact statement declared 19 March 2015. In it the victim indicated that as a result of your offending she felt empty; or as she put it, "numb". She has lost trust in others. Sadly, she says she blames herself for "letting you in". Of course, the victim should not in any way blame herself for what happened in this case.
21She has had nightmares and is confused and upset about what happened. She has lost her appetite and feels distant from other people. She has seen a psychologist frequently since your offending, and has been told she is suffering from post-traumatic stress disorder. That would hardly be surprising, but I do not have any expert opinion to that effect. She suffered scarring, particularly to her face, and had cosmetic procedures to deal with that problem. She has had numerous dental procedures to fix both broken teeth, and that treatment is continuing.
22There can be no doubt that the victim suffered significant, enduring physical and psychological trauma as a result of your offending. It is to be hoped that now that this process is completed she can successfully move on with her life, assisted by whatever psychological counselling is necessary. Your crimes have had a terrible impact upon the victim. Her statement evocatively describes, and stands, as a telling reminder of the human impact of your crimes. The recognition by the court of such material is, I think, an important part of the necessary social rehabilitation of the victim. However, it is true in cases of this sort that rehabilitation of the victim can sometimes be harder to achieve than that of the offender. I hope that that is not the case here. You should feel a great deal of shame and disgrace for what you did to that person.
Background, personal and mitigating circumstances
23I will turn now to your background and personal circumstances. These have been well set out in a comprehensive psychological report by Mr David Ball dated 2 April 2015, and also in a helpful written submission of your counsel, who made an excellent plea on your behalf. Mr Ball is a well-recognised forensic psychologist who specialises in, among other areas, the assessment and treatment of violent sexual offenders such as yourself, and the management of that problem.
24I will mention a number of matters concerning your background and circumstances in the context of setting out a number of mitigating circumstances relied upon by you.
25You are the third of five siblings in a blended family; unfortunately the product of a dislocated and dysfunctional family environment. Your father was a violent alcoholic and your parents separated when you were three. You then lived a modest life with your mother and siblings, but it appears to me to have been an emotionally sustaining and nurturing one. You have a very strong relationship with your mother, who has supported you in court and is present today with other family members.
26You had difficulties at school complicated by bullying, fights, and the complete absence of your father, then his sudden death when you were 12. You left school after Year 11 and spent two and a half years in the army, and then obtained what appears to be some inconsistent work in the bar and security areas. Nevertheless, you have worked for six years with the same meat processing company, and I have received glowing reports of your hard work ethic, your reliability, your conscientiousness and proficiency. During this time you have gained certificates in meat processing, a qualification as an Australian meat grader, and held responsible positions. You have also been active in sports; particularly as a referee.
27Whilst not strictly a mitigating circumstance, your life and welfare has been beset by a significant addiction to alcohol, involving large daily consumption for which you do not appear to have had any appropriate treatment. In his report the psychologist quoted you as follows: “Alcohol has ruined my life. Destroyed every relationship I have ever had. Hurt my family. Lost my son’s access because of it and I am in jail because I involved myself in a relationship I never would have if I was sober”. Obviously that addiction explains a lot of your problems, but the problems are yours. They are not caused by alcohol; they are caused by you. You were diagnosed as having severe Alcohol Use Disorder; in early remission now since you have been in custody. You have experimented with some illicit drugs but they are not your problem; alcohol is.
28I note that the psychologist stated that your offending was connected to your alcohol abuse, which, "impaired his judgment and disinhibited him. He was unable to express any insight into this alcohol abuse other than to state, 'I just like drinking'." Significantly, and correctly, you did not mount any Verdins claim in relation to that problem, but relied on this feature to give your offending context.
29You have established five different relationships; each of up to two years duration - and from one there is a son, now three years of age, but you have had little or no contact with him.
30You have no mental health issues, personality or mood disorders. You appear to be of normal intelligence, but as the psychologist says, you "suffer a raft of self-defeating and schizoid personality features that underpin his controlling and aggressive behaviour".
31Next, you pleaded guilty at the earliest time, thus avoiding cost, time and inconvenience to the community. Significantly, this avoided the need for the victim to give evidence and have to relive, in court proceedings, the trauma and horror of your offending. So your pleas are of utilitarian benefit and have served the ends of justice, and for that alone there should be significant discount in sentence.
32I am also satisfied your pleas of guilty are associated with remorse, regret and shame for your behaviour. You told the psychologist you had apologised to your own family for embarrassment and shame you had caused to them, and through the psychologist, and indeed your counsel here on the hearing, you apologised to the victim, stating that you now understand what you did to her was very wrong. Speaking of the victim, you said to the psychologist: “I violated her and if I hadn’t been charged wouldn’t have realised what I did”.
33Finally, there has been rehabilitation in prison over the past almost 16 months. You have undertaken 12 courses dealing with mood, conflict and anger management, communication skills, and importantly, alcohol minimisation and treatment. You have obtained certificates in cleaning and laundry operations. This effort is all the more impressive given you have held down a job in the laundry. This is your first time in custody and you have been in lockdown at MRC for the past seven weeks due the prisoner riots.
34You have some convictions from 2003, when you were 18, for theft, and theft of a motor vehicle, and being found guilty of using cannabis; for all of which you were fined, but these are not relevant for present purposes. Regrettably, however, you were convicted of recklessly causing serious injury in the Magistrates' Court in February 2010. You were sentenced to four months' imprisonment to be served by way of an Intensive Correction Order. You pleaded guilty and the agreed police summary was provided to me. The offence was committed on 20 February 2010, when you were intoxicated and began arguing with your then de facto partner. In your own home you grabbed that victim around the throat with both hands and threw her to the floor twice. You dragged her by the hair across a room. She tried to escape but you pursued her to the bedroom, pushed her onto the bed and repeatedly punched her to the face using both hands with clenched fists. You then choked her until it was difficult for her to breathe. You repeated this behaviour when she threatened to call the police. As a result of this assault that victim suffered severe bruising to both her left and right eye, resulting in her left eye being completely closed. She also suffered extensive internal bleeding to her left eye, bruising and abrasions to her throat, and extensive bruising to other parts of her body. As a result of your attack upon her she was not able to return to her home address.
35Notwithstanding the mitigating circumstances; given the nature of your offending, the significance of your prior conviction for recklessly causing serious injury, and the psychologist’s finding that you are a moderate to high risk of further offending involving violence and sexual offending, I must remain guarded as to your prospects of rehabilitation. Obviously much in that regard will depend on you receiving, and benefitting from, appropriate treatment for your alcohol addiction and your personality deficiencies, anger management and communication skills.
36You do concede, not surprisingly, the extremely serious offending you have been involved in; particularly the rape associated with violence. You accept the victim suffered significant physical and psychological harm. Your counsel conceded that an immediate term of imprisonment was the only appropriate disposition, but argued that there should be a lengthy non-parole period that will enable you to have the advantage of parole support and treatment. She conceded that the term imposed must adequately reflect general and specific deterrence and just punishment, together with protection of the community. Those principles must be balanced by having regard to your prospects of rehabilitation, and counsel submitted that ultimately I had to avoid imposing a crushing term and offending against the principle of totality. I agree with all of those submissions. No comparable cases were produced.
37The prosecution noted that the offending was at the serious end of offending for these offences, and the importance of a sentence that reflected specific deterrence, having regard to your similar offending in 2010. The Crown did not provide any comparable cases.
Other sentencing considerations
38There are, of course, other important sentencing considerations. These are the significant maximum penalties for each of the charges, particularly that of 25 years' imprisonment for rape. General deterrence is of paramount importance in a case of this kind; especially where the offender is motivated by an emotional grievance concerning a former partner. You failed to control the anger you felt upon the termination of the relationship and you were quite unwilling to accept the autonomy, indeed, the human right, which the victim had to terminate her relationship with you. Your conduct demonstrates the disturbing social evil of such relationship violence, which I strongly denounce on behalf of the community.
39Your conviction for recklessly causing serious injury in 2010 is of significance. The offending there was chillingly similar to some of your offending against the victim in this case. Particularly, when intoxicated, you flew into a rage and seriously assaulted your then partner in your own home, including choking her. There is a need for sentence which addresses specific deterrence; usually so in these circumstances. You are not to be punished again for that prior offending, but it demonstrates why you are, in my opinion, a continuing danger to the community.
40Protection of the community and just punishment are important sentencing aspects as well. I note in that regard that in relation to the program you attended after the first incident of assault, the psychologist stated: “He said that he had learned positive echniques from a men’s behaviour change program ‘but never really applied them’. He said, ‘I become increasingly controlling in relationships until it’s violent. I like things my way. I may be a selfish thing’. He was unable to offer any further insight or explanation.”
41Your moral culpability is very high indeed.
42The stalking charge is a serious example of a serious offence. It was reprehensible conduct characterised by significant objective gravity. Your assaults each involved repeated acts of violence over a sustained period. You clearly knew the victim no longer wished to have a sexual relationship with you. By threatening to reveal it to her partner you placed her in a terrible predicament, and acted very cruelly towards her. You professed to love her, yet you treated her in a hateful way. When assaulting her for charges 2 and 3 you treated her like a rag doll in a heartless manner, all because you could not control your own rage.
43The offence of rape is an abhorrent crime. Rightly, there is significant community concern about such offending, and the need for salutary sentences to punish and deter offenders like yourself. As was noted by the Court of Appeal in the case of FHS: “The courts, when dealing with [rape] cases, must have regard to the vindication of the community’s social values, pre-eminent among which are the protection of the personal integrity and physical safety of its citizens”.[1]
[1]DPP v FHS [2006] VSCA 120, [42], per Vincent JA, with whom Buchanan and Neave JJA agreed.
44The rape here was associated with shocking, animalistic, cowardly violence, and the denigration of the victim. You wore no condom, and this exposed the victim to the possibility of conception, as she was not on any contraception, and perhaps to the possibility of her sustaining a sexually transmitted disease.
45I must have regard to the current sentencing practice and to the operation of the principles of totality and proportionality in your favour, and avoid passing a crushing sentence upon you. I have done all of that. There should be some measure of cumulation in sentence given the separate offences in charges 1 and 5, and modest cumulation given the separate additional offences in charges 2 and 3; which occurred in the lead up to the rape.
Sentence
46You are convicted on all charges. On charge 1 you are sentenced to three months' imprisonment. On charge 2; to 12 months' imprisonment. On charge 3; to 12 months' imprisonment. On charge 4, the rape; to seven years' imprisonment. And on charge 5, the stalking; to 18 months' imprisonment.
47The sentence on charge 4 is the base sentence. I order that seven months of the sentence on charge 5, four months of the sentence on charge 2, and one month of the sentence on charge 1 be served cumulatively upon the base sentence, and upon each other.
48The total effective sentence is eight years' imprisonment. I fix the period of five and a half years before which you shall not be eligible for release on parole.
49I declare that 480 days pre-sentence detention be treated as having already been served on that sentence, and that such declaration be entered in the records of the court.
50But for your pleas of guilty I would have sentenced you to a term of ten years' imprisonment with a minimum of seven years.
51The prosecution has applied for the granting of a forensic order, which was not opposed by you. I am satisfied given the seriousness of the circumstances of your offending on the charges, your prior criminal history in 2010, the fact that the order is not opposed, and that its granting is in the public interest, that the application should be granted. Accordingly, pursuant to s.464ZFAAA(2) of the Crimes Act you are ordered to undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with sub-division 30A of Pt 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I must inform you that notwithstanding your present lack of opposition to the application; if at the time of the making of the request for a forensic sample you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample, and police may use reasonable force to enable that forensic procedure to be conducted.
52I hand down to the prosecution those signed orders, and I ask counsel are there any mechanical issues arising from the sentence I have imposed?
53MR O'DOHERTY: No, Your Honour.
54MS McCRICKARD: No, Your Honour.
55HIS HONOUR: No? Ms McCrickard, nothing from you? All right. Excuse me just one moment. Thank you, I've signed the order. Is there anything else?
56MR O'DOHERTY: No, Your Honour.
57HIS HONOUR: Thank you. Mr McLachlan, you need to go now with the police officers, thank you.
58[Offender removed]
59HIS HONOUR: All right, thank you. Adjourn sine die.
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