Director of Public Prosecutions v Pickering and McKay
[2014] VCC 2213
•18 December 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-14-00428
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHAUN PICKERING WAYNE MCKAY |
---
| JUDGE: | HIS HONOUR JUDGE MULLALY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 18 December 2014 |
| CASE MAY BE CITED AS: | DPP v Pickering & McKay |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 2213 |
REASONS FOR SENTENCE
---Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Joosten | Office of Public Prosecutions |
| For Accused Pickering | Mr M. Brugman | Michael Brugman |
| For Accused McKay | Ms S. Keogh-Barnes | Turnbull Lawyers |
HIS HONOUR:
1Wayne McKay, you have pleaded guilty to seven charges, being one charge of burglary, two charges of theft, one charge being armed with criminal intent, one charge of armed robbery, one charge of being a prohibited person carrying a firearm and one charge of handling stolen goods.
2You, Shaun Pickering, have pleaded guilty to one charge of theft and one charge of armed robbery.
3The events that give rise to these charges occurred almost one year ago to the day. On 17 December 2013 you committed the various crimes with another co-accused, William Pickett. To fully understand the role of each of you and Pickett I need to go back in time before 17 December 2013.
4You, Shaun Pickering, were aged 22 at the time of these offences. You had met Pickett some four to five years earlier after he had relocated from Western Australia. In contrast to your upbringing, Pickett had a variety of difficulties within his aboriginal family and community. In Geelong you and Pickett saw each other from time to time. In December 2013 Pickett, it seems, had unstable accommodation and was looking for a place to live. One or two days prior to 17 December 2013 Pickett introduced, Mr Pickering, to you, Mr McKay.
5You, Mr McKay, were 36 at the time and were significantly older than both Pickett and Pickering who were then 22 and 23. You, Mr McKay, had a long history of serious offending in Western Australia and Victoria. You had served lengthy gaol terms though, as I will make clear, you had also a significant and important period where you reformed and stayed away from crime.
6However at this point I need to make to clear the different worlds you, McKay and to a degree, Pickett, had experienced compared to you, Pickering. This was relevant when, on 17 December 2013, Pickett rang you, Mr Pickering regularly through the day urging you to bring your car and ferry him and McKay around.
7Initially it seems you thought that that involved shifting Pickett to a new house. Quickly it became clear that McKay and Pickett were intent on perpetrating serious crimes with firearms, that you, Mr Pickering, plainly observed in the car when you drove them from a house in Churchill Avenue in Newton towards the Great Western Hotel.
8At 9.00 pm on 17 December 2013 you parked the car at the Great Western and Pickett and McKay got out. You, Mr Pickering, admitted to police in a confessional interview and statement that you knew they were up to no good and were looking for "something to steal".
9After leaving for a short while Mr McKay came back to the car and got bolt cutters from the boot. Pickett and you, McKay, entered the staff locker room as trespassers intent on stealing items from the lockers of the staff at the Great Western Hotel and you did just that. Taking a motorcycle jacket and a bag with sporting and personal items. Then you returned back to the car and all three of you left, returning to the house in Newtown.
10
Twenty minutes later you headed back to the Great Western Hotel and into the area that was for the staff, that is the staff locker area. You, McKay, were armed as was Pickett. The owner of the items that had been earlier stolen,
Mr Hootzmar, came to the staff locker room. He was confronted and threatened. The spectre of outlaw motorcycle gangs was raised with the victim.
11Pickett was the main offender in these exchanges. You, Mr McKay, came to the area where Pickett was with the victim, Mr Hootzmar. Another employee, Mr McMahon, came into the area as well. You, Mr McKay, made demands of him to give you his keys. He refused and then felt and saw the barrel of a gun in his ribs. This, to be frank, odd exchange ended with you, McKay, telling McMahon to play along and Pickett saying to both men, or to Mr Hootzmar, "you have been touched by the Hells Angels".
12Both you and McKay walked off towards the Woolworths supermarket on the opposite side of the road where you, Pickering, had parked the car. Indeed you, Mr Pickering, had gone into the supermarket and purchased some trivial items. You, Mr McKay, also went into that supermarket and stole pantyhose to use as a mask and socks to use as gloves.
13
Thus far I have very briefly detailed the crimes of burglary, the two charges of theft and the charge of being armed with criminal intent committed by you,
Mr McKay, and the one charge of theft of the motorcycle jacket of which you, Mr Pickering, have pleaded guilty as part of a joint criminal enterprise.
14However the far more serious crime of armed robbery was about to unfold. You, Mr Pickering, were told to drive a short distance down Shannon Avenue to the Coles Supermarket car park. You saw your co-accused put the stockings over their heads and Pickett put socks on his hands. They took the weapons hidden up their sleeves and headed off to the supermarket entrance. You turned the lights off in the car, moved it to a nearby side street and as I understand, you kept the engine running.
15You, Mr McKay, with Pickett then entered the supermarket and immediately started to threaten the staff and customers in the checkout area. You demanded they get on the floor and in fear, or more likely terror, a large number complied. I have seen the CCTV footage and it is truly frightening. I agree with Judge Gaynor, who sentenced Pickett, that the vision of the cowering customers and staff prone on the floor, parents protecting a 12 year old child, is vision that is disturbing.
16
You, Mr McKay, continued to threaten staff in order to get the cash registers open. The customer had a gun held to his head by Pickett and you,
Mr McKay, pointed your gun at a staff member cowering behind the service desk. You demanded that he open the till but he could not do it. No doubt his fear at that time was acute.
17As you, Mr McKay, moved over and around prone staff and customers a bullet fell from your gun. The gun you had was inoperable but this fact was unknown to the victims. The fallen bullet no doubt sharpened their focus revealing that you had a loaded weapon and possibly revealed the gun was unstable and thereby perhaps more dangerous.
18Then Pickett held his pistol to the next area of a young 17 year old employee. He was told to open the till and with the use of passwords he was able to comply. While this was going on you, McKay, came to the area to get money from the till. The fear experienced by this young employee was palpable from the CCTV footage. You had this young man move to another register and you, McKay, said to this 17 year old boy, as you held a gun to his neck, the following chilling words "You have two seconds to open the till until I shoot you". He opened the till and you removed the entire cash tray.
19With that and some gratuitous words as you ran, you and Pickett left and jumped into the waiting getaway car. You, Mr Pickering, drove the back streets of Newtown until you arrived at the Churchill Avenue address. The total amount stolen in the robbery was $3712. It was divided mainly between Pickett and you, Mr McKay. You, Mr Pickering, got a $50 note and coins for your trouble.
20You, Pickering, later drove Pickett to dispose of items in the Barwon River before leaving Pickett in the Churchill Avenue house and driving home. You, Mr Pickering, were arrested at the work site where you were employed as a plasterer some two days later or thereabouts on 19 December 2013.
21You, Mr McKay, were arrested on that same day after police raided a house in Drysdale. At that time police found items which you have pleaded guilty to as the handler of the stolen goods. These items were computer and electronic equipment.
22On any analysis the armed robbery was a grave example of that serious crime. It was in the upper level of armed robberies with many victims simply going about their ordinary Christmas shopping or at work in a busy supermarket. It was planned. The necessary items and disguises were obtained albeit it late. The getaway car was ready and available. There were socks used as gloves. More importantly guns were obtained, carried into the supermarket, brandished to obtain compliance and ultimately thrust into the neck of a young staff member to get him to operate the till or else he would be shot.
23The firearms were seen by the cowering staff and customers. The ordeal was protracted. A child was involved and his parents desperately tried to cover his view of the traumatic events. The time of year, and to a degree, the time of night was likely to see a significant number of customers in the supermarket. Simply put, this type of armed robbery is now, thankfully, rarely seen in these courts. The punishment must be commensurate to the serious crimes perpetrated by you men.
24The burglary and the thefts and the intimidatory conduct at the Great Western Hotel also reveals serious offending by you, Mr McKay, along with Mr Pickett.
25The effect on the victims at the supermarket has been significant. Many sought counselling and assistance. Some wrote victim impact statement telling of the long term effects upon them. Some were read in court. I will just detail some very brief matters. One victim says, she being an employee, "After the incident I struggle to go back to work. I didn't feel safe and I was jumpy". She reports that she is still anxious and taking sleeping tablets. She says
"The nightmares were so scary and I was reliving it all the time. It's a horrible feeling of being scared to go to work or constantly looking for people coming in and if they are wearing a hood. Every now and then the image of the barrel of the gun up the guy's sleeves pops into my head and I have to focus on breathing to calm down".
26Another victim write that she was happily shopping for groceries to make up hampers for other needy people. She is visibly upset and angry that those criminals wantonly disrupted the innocent lives of strangers, including her own. She does not feel safe in her own home anymore.
27Another man describes the massive impact of the crime on his life. His stress level have escalated, his sleeping patterns became worse and now are almost to normal. He constantly finds himself reliving this incident of the shotgun being pointed at his head. He tells of an experience where he woke up having a bad nightmare and as a result he struck out with his hand thinking he was involved in some frightening episode. However he simply swung a punch hitting the wall or the bedside table breaking his hand which seriously affected him for a number of weeks. He does not know when his mental health is going to allow him to get back to work. He has been away from work for five weeks, totally incapacitated to work in a safe manner.
28Another victim writes of difficulties within a relationship that had been solid to that point. Difficulties arose as there seemed to be a lack of understanding in the relationship as to what the victim had gone through.
29Another victim feels scared at night. She wakes up holding her breath, clenching her teeth with the feeling of a man standing over her ready to shoot her. She has flashbacks, she feels angry, violated and anxious most of the time. She is confused. She has found counselling hard because she has to remember the event. The day should have been a better day for her as she picked up a new car to show her friends and then went to the supermarket. Now she finds that everything has changed. She is walking around in circles. She finds shopping to be a personal nightmare. She is depressed, on medication just to get through the day.
30In your case, Mr McKay, there is little that can be said about the offending conduct that lowers its gravity or your moral culpability. I will refer to the fact that your use of the drug, Xanax, at the time of the offending however in short it does not mitigate, it merely explains, to a degree, why you have little memory of what you did and it provides the broad background to your fall back into serious offending.
31You, Pickering, drove the vehicle. You said repeatedly in your record of interview and your statement that you wished you had just driven away but you felt that you could not. You do not say that you were directly threatened, verbally or physically by your co-accused but you do maintain that you felt you had little choice. Of course you did have a choice and you realised that now, in hindsight, that you could have taken a different path. However our role, which was vital, was not at the same level as the others who used the guns in the way they did.
32As all involved in this case, that is the two prosecutors and those who are counsel for co-accused, have all agreed that you are in a different league to McKay and Pickett in this offending and I agree. Your role and your moral culpability is plainly lower and must be reflected in the sentence that I impose.
33
I will turn now to the personal circumstances of each of you men. They are vastly different. Dealing firstly with you, Mr Pickering, I intend to proceed through to announce a sentence upon you before then returning to you,
Mr McKay. That is, you will be separated from this point on.
SHAUN PICKERING
34Dealing first with you, Mr Pickering, and turning to the most significant difference. That is that you are a young man who was just 22 at the time of the offending and you are first offender. You were raised in a supported, loving, law-abiding teetotalling family. You still live at home with your parents and three siblings. You left school after Year 10 to commence an apprenticeship as a plasterer. You gained your qualifications in that trade and have worked continuously as a plasterer for now over seven years. You had just gained employment with new employer when you committed these crimes.
35Despite your arrest for these serious matters your employer stuck by you. I read testimonials in respect of you and many people see a good deal in you. Your solid work history is to your credit. In addition to the background information about your family circumstances, as set out in your plea by your counsel and in the psychologist report of Mr Cummins, I also heard evidence from your father and read the letter from your mother. I read, also, letters from friends of your family. People who know you and your family well.
36Your father and your mother are incredulous, bewildered, that you became involved in this terrible crime. They are very concerned for your immediate future. Notwithstanding that you have put them through they stand firmly behind you. They know you best and know you are ashamed and remorseful and determined never to be involved in any criminal behaviour again.
37It is plain to me that your underlying character and circumstances are such that I can confidently conclude that this offending was a one off event significantly out of character. There is much about the ongoing support you have and your immediately waking up to yourself that, again, makes me confident that you can resume your previous lawful ways with the added incentive of the harsh lessons you have, and will continue to learn, from your involvement at this level in the criminal justice system.
38All this said, you have used illicit drugs, most prominently cannabis which became a daily habit. You developed a problem with excessive drinking but since you turned 21 you have reigned that in significantly. You developed pancreatitis subsequent to your offending and have ceased drinking completely.
39The experienced psychologist, Mr Cummins, considered you were an immature, naïve, young man. I am sure that is right. Your involvement in this offending at the request of the co-accused speaks of a malleable young man unable to stand up and do the right thing and refuse to be involved.
40Your response to your arrest is to your considerable credit. You cooperated completely with the police, acknowledging your responsibility, confessed and provided authorities with full details of the offence and the offenders. This attitude continued uninterrupted as you speedily pleaded guilty and gave an undertaking to give evidence based on your sworn statement. Although that is, in the end, not required and no evidence is given it is the fact of your willingness to assist the prosecution that is the weighty relevant mitigatory consideration.
41All these matters, your plea and its timing, your cooperation bring significant mitigation to bear in your sentence. The sentence will be significantly less because of your plea and separately less because of your willingness to assist the authorities.
42Separately these matters, along with other evidence, establishes without doubt that you are truly remorseful and contrite. Your shame weighs you down. The community is keen to see genuine remorse and if present, especially in a young offender, the community more easily understands that leniency is warranted.
43You are a young first offender and I am justified in giving prominence to your rehabilitation. I will restate the well-known principles involved in sentencing young offenders so that you, and the community, understand the prominence given by the courts to reclaiming a young person if that is possible.
44Justice Batt in the well-known case of R v Mills said this, although there he was dealing with offenders younger than you. He said,
"The youth of an offender, particularly a first offender, should be of primary consideration for a sentencing court where that properly arises".
45Two, in the case of a youthful offender,
"Rehabilitation is usually far more important than general deterrence. This is because punishment may, in fact, lead to further offending. Thus for example individualised treatment focusing on rehabilitation is to be preferred. Rehabilitation benefits the community as well as the offender.
"A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effects of past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender and where the offender has not previously been incarcerated or a shorter period of imprisonment may be justified".
46I am acutely aware that these matters directed at facilitating rehabilitation of young offenders may need to yield to other sentencing purposes if the offending is particularly serious. I can do no better than refer to the judgement of Justice Redlich in R v Azzopardi in which His Honour comprehensively sets out the principles to apply when sentencing youthful offenders and the matters that may mean that principles have to be ameliorated.
47However as noted in Mills and many Court of Appeal authorities since in respect of sentencing young offenders, that the prominence that ordinarily would be given to rehabilitation must, to a degree, yield to other sentencing consideration such as deterrence and denunciation if the offending is particularly serious.
48That is the case here and as such, to a degree, your rehabilitation must be balanced against the undoubted need to denounce your serious offending and deter others who may be minded to be involved at any level with offences were firearms are used to create true fear in ordinary citizens and shop workers just going about their ordinary tasks.
49These crimes do tear at the fabric of our community. Ordinary citizens become fearful that violence is just around the corner as they set about doing the things that must be done, such as shopping in supermarkets. Shop staff who must necessarily deal with cash have an underlying sense of insecurity that they may be terrorised by armed offenders desperate for money. As a consequence the courts must, by the sentences imposed, reassert proper values to deter other wrongdoers from offending.
50In your case, Mr Pickering, the plain tensions involved in this frankly fiendishly difficult sentencing task is whether all sentencing purposes can be met by a punishment other than imprisonment. Imprisonment is the punishment of last resort. I must ensure that I do not impose if any other sentence can meet all other sentencing purposes.
51I have anxiously considered this matter. I am acutely aware of your youth, immaturity and vulnerability. Adult prison is a brutal place. A new sentencing regime involving longer Community Corrections orders allow me a degree of flexibility, as does the new regime of longer prison terms combined with Community Corrections orders.
52However, in the end, taking into account in the synthesis all the considerable and weighty matters in your favour and all other matters such as the gravity of this armed robbery, its impact on the victims and the community, the need for denunciation and punishment deterrence to others as well as well as your rehabilitation, I have come to the unhappy conclusion that there is no other just and appropriate sentence other than a sentence involving a measure of imprisonment combined with a long and hard Community Corrections order. Although I did not have you assessed I am in no doubt that you are suitable for a Community Corrections order and I intend only to impose hours of unpaid work.
53
The fact of any incarceration will probably, in your mind and that of your family, seem too harsh and unfair. However though at this time it must seem almost impossible for you to comprehend I tell you that for what you did, albeit only as the driver, the sentence that I am about to announce is as lenient as can be given. I consider there is a place for mercy and has been given in as full a measure as I can. But mercy in mitigation cannot overwhelm such that gaol is entirely avoided. I am mindful of your circumstances in prison. That they will be harder as a person who has cooperated with authorities.
Mr Pickering, I impose the following sentence upon you.
54For the charge of theft I impose a sentence of imprisonment of 14 days. For the crime of armed robbery I sentence you to imprisonment for 20 months. Those sentences are to run concurrent. I fix a minimum non-parole period of six months. I order that you also serve two years of a Community Corrections order with one special condition that applies to you, that is, that you do 300 hours of unpaid work.
55That Community Corrections order will commence at the end of your sentence and the parole period if, and when, parole is granted. You will be under general supervision of the authorities for the best part of three and a half years.
56You have already served one day in custody and I declare that that one day be reckoned as part of the sentence that I have just imposed. I will ensure that this declaration is entered into the records of the court. That means that the prison authorities will be left in no doubt that you have already served one day of the sentence that I have just imposed.
57Had you pleaded not guilty to this offence and been found guilty of it, I would have imposed a sentence of four years with a minimum term of two years. Are there any other orders that are required?
58MR JOOSTEN: No, Your Honour, as Your Honour pleases.
59HIS HONOUR: There are no other orders required for Mr Pickering?
60MS KEOGH-BARNES: Your Honour, there are the forfeiture and disposal orders.
61HIS HONOUR: I'll make those in relation to Mr McKay. Mr Pickering, there is a requirement that you sign a document, I sign a document, relating to the Community Corrections order. I'll have that document signed now by you if you consent to it and I will explain the conditions.
62As I think I have explained to you throughout the course of the proceedings in Geelong and I repeat it here, the courtroom here is unfortunately not a place in which you can engage with those that care for you and are here for you. You will have to go with the prison authorities when I say so. I will ask you to do that and you will leave the courtroom and Mr McKay's sentence will follow after that.
63Mr Pickering, in respect of the Community Corrections order it is for two years. It is to commence upon completion of the parole period. You must attend at the Community Corrections centre at Geelong, in Little Mallet Street, within two clear working days after the commencement of this order. The parole authorities will make it plain.
64These conditions apply to everyone on such an order. You must not commit any other offence for which you could be imprisoned during the time that the order is enforced. So when two years on from when your parole finishes, you are not to commit any offence. If you do, you come back before me and the leniency will not be repeated. You must consider that almost every offence you can think of is a crime that could be punished by imprisonment. Whether the magistrate gives you that is neither here nor there. It is whether you commit an offence that would breach this order.
65You must comply with any obligations or requirement under the regulations of the Sentencing Act. That will be to have your photograph taken and so on so you can be identified. You must report to, and receive visits, from the Secretary or the Office of Corrections. You must let the Community Corrections officer know within two clear working days if you change your address or your job. You must not leave Victoria. That's over the border or anywhere, without getting permission to do from the Office of Corrections and you must obey all lawful instructions from them, the Office of Corrections.
66In addition to that, those conditions which apply to everyone, I have imposed a condition upon you that you must perform 300 hour so unpaid community work over two years as directed by the Office of Corrections. Just do that work on time, every time. Do you understand? If you breach it you come back before me.
67You will be under supervision. That means, I have not ordered formal supervision, but the Office of Corrections and the like will be keeping you under their watchful eye, as it were, for a significant period of time just to ensure that your commitment to your rehabilitation continues and you do as I hope you do and never come back to places like this again. Yes, if you consent to that, sign the order and I will sign it and that will bring about the unfortunate position that you will have to leave the court and go with the prison authorities.
68Just remain there for one moment please. It might be a formality, Mr Pickering, but I have to sign this document. I remind you that you have signed it saying that you will do it. Thank you, Mr Pickering can be removed.
69MR BRUGMAN: As Your Honour pleases.
70HIS HONOUR: Thank you. If anyone wishes to leave the court then just do so. I thank counsel for their significant assistance and the dignity shown by all involved.
71MR BRUGMAN: As Your Honour pleases.
72HIS HONOUR: Anyone can remain if they wish to, of course.
WAYNE MCKAY
73Mr McKay, your personal circumstances reveal early and significant personal trauma which was unrelenting as you grew up. As mentioned you were 36 at the time and are now 37. You were born in Western Australia. Your early family life, if it can be described in those terms, was full of violence perpetrated by a stepfather and an older brother. Your mother did what she could to protect you but she was troubled herself with many problems connected to, or exacerbated, by her abuse of pills and alcohol.
74The violence and lack of any of the care usual in a family saw you run to the streets at the age of 12. On the streets you encountered serial and significant sexual abuse from men living an itinerant lifestyle. These events occurred around stints, it seems, in foster homes and state care. Sexual and physical abuse also occurred when you were ostensibly in the care of others and/or the state.
75You commenced using drugs at a very early age that is at the time that you took to living on the streets. By 14 you were engaging in significant episodes of self-harm. As a consequence you were hospitalised in a Perth psychiatric unit, all by the tragically early age of 14. Your mental health has since that time been fragile and damaged. You had none of the benefits of an education nor the stability of solid employment. You commenced offending as a juvenile and served significant periods of detention for relevant offences of armed robbery.
76Your involvement in drug use, mainly heroin and amphetamines, saw you engaging in crime which resulted in periods of imprisonment in adult gaol in Western Australia. You committed a further armed robbery which saw a lengthy sentence imposed by the Supreme Court of Western Australia. You will not be repunished for your past offences, but the number and nature of your past crimes makes it necessary that I give weight to deterrence to you and protection of the community from you.
77Additionally, I consider your prospects of rehabilitation are very guarded. I will return to your prior criminal history shortly because the narrative of your life reveals that you had a significant period where you were able to put heroin behind you and live a lawful life. At age 25 or thereabouts when you were released from prison in Western Australia you decided to start afresh in Adelaide. There you met Michelle and she became an important part of your life for the next ten years. You had a child with her and you were a father figure to her two children. Your children are important to you.
78After relocating to South Australia you then moved with Michelle to Geelong in 2008. However, most importantly, in the interim you had been encouraged to write a book of your traumatic upbringing and fall into drugs and crime. You did so with the intent of telling your story and educating others not to fall into the traps that you did. The book was published, however, the experience of reliving your childhood brought back significant trauma and pain. You became very unstable, and despite the intent of your book, the experience of writing it tragically saw you fall back into drug use and crime. You were unable to maintain the important relationship with Michelle.
79You committed serious crimes of dishonesty and violence which resulted in gaol terms in 2010 and 2011. You were released in mid-2012. With your release or on your release in 2012, the relationship with Michelle was over and you resorted to the abuse of prescription medication whilst at the same time giving up taking your important prescribed medication for your significant mental health problems. You were abusing Xanax at the time you offended, though it is not put as an excuse but further evidence of your mental health troubles.
80You have had psychiatric inpatient care more than once and were seeking more help from Barwon Health at the time of this offending. You currently receive medication in prison to manage your mental health problems. The opinions in the reports of Dr Cunningham the psychologist and the older report of Dr Walton the psychiatrist see that they are in agreement that you suffer from post-traumatic stress disorder arising from your abusive experience as a child and young person. This condition manifests itself in significant feelings of worthlessness and low self-esteem. You suffer from paranoia, have persecutory auditory hallucinations, you struggle with any relationship and your emotions are unstable. You are prone to impulsivity.
81As the High Court made clear, in the most recent sentencing case where the appellant was named Bugmy, that a deprived upbringing marked with violence, sexual abuse and abandonment, that in itself then results in significant psychological trauma are matters that always play a role in the sentencing process. That is so even if the offender is a repeat offender.
82I will take into account who you are, Mr Mckay; a man much damaged by abuse and neglect as you grew and developed. You are a product of that and the consequences are still being felt by all who come across you.
83Your counsel did not pursue any of the points raised in Verdins, but sensibly submitted that in considering my sentencing task I should view you as a man who has suffered a great deal and who, despite the odds, has shown a capacity to lead a stable life for a significant period of time before relapsing. His point was that with a lengthy supervision and help on parole you may well achieve another period of stability and hopefully permanent reform.
84You are doing all your can in prison to become stable and be useful, and in particular develop your skills in your art. You have talent as an artist and you are working in this area so as to perhaps become an artist who can make some money from your skills while in prison and, more importantly, on release. You are a peer mentor; an important role in prisons only given to those who can and do try to impart positive rehabilitative influence on other young offenders.
85Your plea of guilty is important. You did not challenge any evidence at committal. Your sentence will be less than it otherwise would have been had you pleaded not guilty. You have since realised what you put the victims through and express regret and remorse. That is to your credit.
86I have to ensure your sentence fits appropriately with the sentence imposed on Pickett by Judge Gaynor so that in the end neither you or Pickett are left with a justifiable sense of grievance that one has done better than the other. He, Pickett, of course was a young man with a less extensive criminal history than you. He had, however, committed other separate offences the next day. You face different offences such as being a prohibited person carrying a firearm.
87I must also ensure that your sentence fits the totality of your offending no more and no less. To that end, I have revisited each sentence, each order for cumulation and the total sentence to ensure that in the end the sentence is just and appropriate.
88I must give proper weight to denunciation, protection of the community, deterrence to you and to others while not abandoning the need to establish conditions that may facilitate your rehabilitation. I have allowed for a significant period on parole as urged by your counsel. This hopefully is a time when you can put your criminal behaviour permanently behind you with the assistance of the parole authorities.
89While your role and that of Pickett were indistinguishable, in the end your age, your prior history, your personal circumstances and his are such that your sentence must be a different one and your must be a longer one. However, the sentence imposed on Pickett is such that I must be and I have been constrained.
90You can remain seated, Mr McKay. For committing the crime of burglary, Charge 1, you are sentenced to 12 months' imprisonment; for Charge 2, theft, two months' imprisonment; Charge 3, theft, seven days' imprisonment; Charge 4, being armed with criminal intent, 12 months' imprisonment; for the armed robbery, Charge 5, six years and four months' imprisonment; for being a prohibited person carrying a firearm, 16 months' imprisonment; and handling stolen goods, eight months' imprisonment.
91I order that four months of Charge 1, three months of Charge 4, eight months of Charge 6 and two months of Charge 7 be cumulative upon each other and upon the sentence that I imposed on Charge 5, being six years and four months.
92The total effective sentence, if my arithmetic is correct, is seven years and nine months, and I order a non-parole period of five years and three months.
93I just need the updated presentence detention.
94MS KEOGH-BARNES: Your Honour, we had discussions earlier and we understand it is 279 days.
95HIS HONOUR: You have already served 279 days of the sentence that I have just imposed, Mr McKay. I will ensure that this reckoning and declaration I have made is entered into the records of the court so the prison authorities are left in no doubt that you have served 279 days of the sentence I have just imposed.
96Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of ten years with a non-parole period of eight.
97I ask counsel to just ensure that the arithmetic is correct.
98I will sign other orders. The first relates to money found in the premises which is said to be tainted property. The second relates to a disposal order, being items discovered upon the raid of the premises you were in at the time connected to the robbery. There is a forfeiture order relating to the firearm and ammunition.
99Is the arithmetic right?
100MS KEOGH-BARNES: I believe it is, Your Honour.
101COUNSEL: I think so, Your Honour.
102HIS HONOUR: Thank you. There is nothing further then. Mr McKay can be taken to the cells. I expect no doubt, albeit that he is a peer mentor, he will be separated from any other accused in this case. He is a young man, this young fellow who has gone into prison. Hopefully he gets through it. If there is nothing further then Mr McKay can be removed.
103I thank counsel for their considerable assistance over the journey. Pass that to Mr Cronin, Ms Gibson, Ms Maxwell. Thank you.
‑ ‑ ‑
0
0
0