R v McKenna

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v McKenna

Citation:

[2015] ACTSC 253

Hearing Date:

21 July 2015

DecisionDate:

21 July 2015

Before:

Penfold J

Decision:

See [19] and [20] below

Category:

Sentence

Catchwords:

.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence after deferral of sentence for 12 months – offender’s rehabilitation apparently progressing well – sentence imposed in accordance with sentence indication given when sentence deferred.

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes Act 1900 (ACT), s 23

Criminal Code 2002 (ACT), s 312

Parties:

The Queen (Crown)

Andrew McKenna (Offender)

Representation:

Counsel

Mr M Fernandez (Crown)

Mr A McKenna (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Ben Aulich & Associates (Offender)

File Number:

SCC 4 of 2014

Introduction

1. On 29 July 2014 I deferred sentencing Andrew McKenna on one count of aggravated burglary and one of intentionally inflicting actual bodily harm. 

1. The offences arise under s 312 of the Criminal Code 2002 (ACT) and s 23 of the Crimes Act 1900 (ACT) and carry maximum penalties respectively including imprisonment for 20 and 5 years.

1. The offences were committed in July 2012 and were objectively serious.  Mr McKenna, with two co-offenders, went to the victim's home intent on assaulting him and then stealing drugs and money from his apartment.  It seems that Mr McKenna, who had been using amphetamines, had been provoked into this by accusations of sexual abuse made against the victim by some of Mr McKenna's companions on the day in question.  No money or drugs were found but the victim was punched around his head and neck and some of the blows drew blood.

1. In my remarks when deferring Mr McKenna's sentencing (an extract from which is attached as Annexure 1), I noted that Mr McKenna, who was 20 at the time of the offence, had no criminal record but had had a very difficult childhood.  Mr McKenna was raised by his father after his mother, who suffered from schizophrenia, left the family.  Although Mr McKenna's father provided a stable and supportive family life for his four children, Mr McKenna struggled with his sense of responsibility for his mother, who died not long after these offences were committed after a descent into illness and drug abuse.

1. Mr McKenna himself had begun to use illicit drugs in his mid-teens but had begun to use amphetamines not long before the offence.  By the time I deferred the sentencing, Mr McKenna had stopped using drugs and had begun to see a psychologist, in particular in the hope of addressing his unresolved grief arising from his relationship with his mother and from her death.

1. Mr McKenna has spent no time in custody in respect of these offences. 

Progress reports

1. Since I deferred sentence in July last year, Mr McKenna has appeared before me twice for progress reports.  In November 2014 I was told that he had submitted to urinalysis on several occasions and test results had been…