R v McKenna - [2014] ACTSC 219

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v McKenna
Citation:	[2014] ACTSC 219
Hearing Dates:	20 June 2014; 11 July 2014
DecisionDate:	29 July 2014
Before:	Penfold J
Decision:	1. The offender is convicted of one count of aggravated burglary and one count of intentionally inflict actual bodily harm. 2. The offender’s sentencing is deferred until 21 July 2015.
Category:	Sentence
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender to be sentenced on guilty pleas for one count of aggravated burglary (committed in company) and one count of intentionally inflict actual bodily harm – home invasion involving attempt to steal money and drugs, and retaliation for alleged sexual assaults and theft – childhood affected by concern and sense of responsibility for schizophrenic mother who abused drugs – stable home provided by father – offender used drugs while supporting mother and otherwise – offender affected by amphetamines at time of offences – death of mother shortly before offender charged – no current drug use – co-offenders previously sentenced – parity – sentence deferred to allow treatment relating to unresolved grief and drug abuse.
Legislation Cited:	Crimes Act 1900 (ACT), s 23 Criminal Code 2002 (ACT), s 312 Crimes (Sentencing) Act 2005 (ACT), s 118
Parties:	The Queen (Crown) Andrew McKenna (Offender)
Representation:	Counsel Mr M Fernandez (Crown) Mr S Whybrow (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender)
File Number:	SCC 4 of 2014

HER HONOUR: Andrew McKenna has pleaded guilty to one count of aggravated burglary under s 312 of the Criminal Code 2002 (ACT) and one count of intentionally inflict actual bodily harm under s 23 of the Crimes Act 1900 (ACT). These offences carry maximum penalties respectively including imprisonment for 20 and five years.

The incident from which these charges arose took place in July 2012. An agreed Statement of Facts describes the incident:

[Mr McKenna and two associates], Mr Wallace and Mr Baldini agreed to travel together to the residence of [the victim], knock on his door, and when he opened it they would knock him out by assaulting him to then search his apartment for drugs and cash.
Mr Wallace got tee-shirts for himself, [Mr McKenna] and Mr Baldini to place over their faces to conceal their identity. Mr Wallace also got a sports bag with which he intended to carry things taken from [the victim]’s residence.
Shortly before 9.00pm, [Mr McKenna], Mr Baldini and Mr Wallace travelled in Mr Baldini’s work van to ... Mawson. Mr Baldini parked his vehicle in the driveway. [Mr McKenna], Mr Wallace and Mr Baldini walked to [the unit] where they knew [the victim lived].
On the way to the unit, [Mr McKenna] and Mr Wallace tied the tee shirts ... around their necks so they were positioned to allow them to be pulled up to cover their faces. Mr Wallace described the layout of the interior of [the victim]’s apartment.
At about 9.00pm, [the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] ACTSC 219
Decision Date: 29 July 2014

CaseChat Overview and Summary

The case of R v McKenna involved the defendant being charged with aggravated burglary in company and intentionally inflicting actual bodily harm. The court was required to determine the appropriate sentence for these offences. The defendant had pleaded guilty to both charges and the case was heard in the relevant court. The defendant’s history included a challenging childhood, marked by a sense of responsibility for a schizophrenic mother who abused drugs. Despite this, the defendant had a stable home life with his father. The defendant had been using drugs, including while supporting his mother and for personal use. The offences were committed while the defendant was under the influence of amphetamines. The defendant’s mother had died shortly before he was charged, and he had since stopped using drugs. The co-offenders had already been sentenced. The court had to consider parity in sentencing and the need for the defendant to undergo treatment for unresolved grief and drug abuse.

The court identified several key issues in determining the sentence, including the defendant's background and the mitigating factors present. It was acknowledged that the defendant had a difficult upbringing and had been supporting his mother, who had significant mental health and substance abuse issues. The court also considered the fact that the defendant was under the influence of drugs at the time of the offences. Furthermore, the recent death of his mother and the defendant’s decision to cease drug use post-charge were noted. The court emphasised the importance of parity in sentencing with the co-offenders and the need for the defendant to address his unresolved grief and drug abuse issues through treatment.

In delivering its judgment, the court emphasised the need for a sentence that took into account the defendant's background and the mitigating factors. The court deferred sentencing to allow the defendant to undergo treatment for his unresolved grief and drug abuse. The court acknowledged the defendant's difficult upbringing and his efforts to support his mother. The court also considered the influence of drugs on the defendant at the time of the offences and the fact that he had since stopped using drugs. The decision to defer sentencing was made to ensure that the defendant could address these issues before a final sentence was determined. The court recognised the importance of parity in sentencing and the need to treat the defendant appropriately given his circumstances.

The court's final orders were that the defendant was convicted of one count of aggravated burglary and one count of intentionally inflicting actual bodily harm. The sentencing was deferred until 21 July 2015, to allow the defendant to undergo treatment for unresolved grief and drug abuse. This decision aimed to ensure that the defendant could address these issues before a final sentence was imposed, reflecting the court's consideration of his background and the mitigating factors present in the case.

Orders

Orders of the court

1. The offender is convicted of one count of aggravated burglary and one count of intentionally inflict actual bodily harm.

2. The offender’s sentencing is deferred until 21 July 2015.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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