R v McKenna
[2000] VSCA 194
•10 October 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 279 of 1999
| THE QUEEN |
| v. |
| MARCUS GREGORY McKENNA |
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JUDGES: | WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 October 2000 | |
DATE OF JUDGMENT: | 10 October 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 194 | |
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Criminal law – Sentence – Attempted armed robbery and theft – Head sentence of three-and-a-half years confirmed but non-parole period reduced.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. P.A. Coghlan, Q.C. | P.C. Wood, Solicitor for Public Prosecutions |
| For the Appellant | Mr. O.P. Holdenson, Q.C. | Ellinghaus & Lindner |
WINNEKE, P.:
The appellant, Marcus McKenna, who is currently aged 26 years, pleaded guilty in the County Court at Melbourne on 26 October 1999 to one count of attempted armed robbery and one count of theft. The attempted armed robbery was committed by the appellant in company with another man, Frank Iaquinto, who stood for sentence at the same time.
The attempted robbery involved the entry at night, on 24 March 1999, into the premises of a 50-year-old Bacchus Marsh man who was known to the appellant. The appellant and his co-accused sought to disguise themselves by donning balaclavas. They apprehended the victim as he entered his own home. They accosted him with a knife, which was possessed by Iaquinto, and threatened him with injury if he did not give them money. They manhandled the victim, who eventually managed to escape inside his house and locked the door. Before decamping, the appellant went to his victim's car and stole $800, which was the subject of the theft alleged in count 2.
The victim recognised the voice of the appellant during the attempted robbery. The police apprehended him and at first he denied his involvement. The co-accused was apprehended shortly afterwards and he made full admissions and implicated the appellant. Shortly thereafter, the police again interviewed the appellant and he admitted his complicity but sought to reduce his role by claiming that there was a third person involved, called "Ronnie", and that he, the appellant, had remained in the car outside as the getaway driver and had only intervened when he heard the victim scream. He denied taking the money from the vehicle. He gave no evidence on his plea to support his contentions and the judge rejected them.
The judge sentenced Iaquinto, who had a far more extensive criminal history than the appellant, to four-and-a-half years' imprisonment on the attempted armed robbery and to six months' imprisonment, to be served concurrently, on the theft. He imposed a sentence of three-and-a-half years upon the appellant for the attempted armed robbery and six months, again concurrent, for the theft. The total effective sentence imposed upon the appellant was, therefore, three-and-a-half years. His Honour ordered the appellant to serve two-and-a-half years before becoming eligible for parole.
The appellant had ten prior convictions from six previous court appearances, but he had not previously been sentenced to gaol.
His Honour found the facts as I have briefly recited them. He had before him a victim impact statement, which demonstrated, and his Honour so accepted, that the victim had been left in a state of severe anxiety.
The judge also had before him a report from a forensic psychologist, Mr Ian Joblin, and a medical report from a Dr Ross Wilkie, each in respect of the appellant. He also had evidence from the appellant's mother. Those reports and that evidence disclosed factors relevant to the appellant which his Honour accepted. They included the following matters: firstly, that the appellant suffered from a long-standing affliction known as attention deficit disorder which had hampered his education; next, that his upbringing had been made difficult not only because of his own disorder but by problems afflicting his father which stemmed from his service in Vietnam; next, that the appellant had attempted to overcome his problems by seeking work, first as an apprentice jockey and then as a slaughterman with Gilbertsons. In each of those enterprises it appears that the appellant made strenuous efforts to succeed. Finally, that the appellant had suffered a severe injury to his spine in the course of the latter employment with Gilbertsons; and that the injury had rendered him unemployable, causing him so much pain that he commenced to use heroin to contain it.
At some stage in his younger life the appellant had taken to drink. He recognised his problem and desisted. It was unfortunate that, following his injury, he turned to heroin. Showing similar resolve as he had to his alcohol problem, he has striven to wean himself off heroin. After the commission of these offences, and at the time of sentence, he was on a methadone programme. He was at that time keeping company with a steady girlfriend and appeared to be overcoming his difficulties.
Notwithstanding these factors, which his Honour apparently accepted, the judge regarded the crime as a cowardly and despicable one which, in his view, deserved serious punishment. He regarded the crime as both planned and deliberate and one which could only be punished by a sentence reflecting principles of specific and general deterrence.
A number of submissions have been made on behalf of the appellant by Mr Holdenson, largely directed towards encouraging the Court to the view that the head sentence was manifestly excessive. Thus it was contended that the trial judge had given too little weight to the appellant's plea of guilty, to the reduction in his moral culpability on account of his heroin addiction, to his prospects of rehabilitation, and particularly to the fact that this was the first time upon which the appellant, a man of a still relatively young age, had been sent to prison. He submitted that this case, in the light of the background of the appellant, was one where moral culpability was a matter of some significance, particularly where the heroin addiction was related to the pain stemming from the back injury which had rendered him unemployable some time before he embarked upon this criminal enterprise. Thus it was submitted that the sentence should have taken account of his lifestyle problems as well as encouraging his capacity to rehabilitate himself.
In circumstances where a relatively youthful offender is to be sent to prison for the first time and is known to be well motivated, it was submitted that, at least, recognition should have been given to his prospects of rehabilitation by setting a shorter than usual non-parole period. Particularly was this so, counsel submitted, where the judge was fully aware of the background and counsel had squarely put before him that such a disposition was an appropriate one.
With his usual candour, Mr Coghlan, who appeared for the respondent, was prepared to accept that perhaps insufficient consideration had been given to the appellant's prospects in fixing the non-parole period.
For my own part, I am not persuaded that the head sentence of three-and-a-half years' imprisonment was beyond the range of sentences available to his Honour. Although, for the reasons submitted on his behalf, I think the sentence was a high one, his Honour was entitled to regard this attempted armed robbery as a despicable crime which could only be appropriately punished by immediate incarceration. Even though this was the first time upon which the appellant was being sentenced to imprisonment, it does seem to me to have been open to his Honour to fix the term which he did, having regard to the fact that the maximum penalty fixed by the statute is 20 years.
What concerns me in this case, as I indicated to counsel, is the period which his Honour fixed as the non-parole period, which, as in the case of the co-offender, was twelve months below the head sentence imposed. Although a judge is not bound to give reasons for fixing a non-parole period, it is, I think, significant in the case of this appellant that the judge appears to have adopted what seems to be a somewhat mechanical approach, by fixing, in the case of each of the offenders, a non-parole period 12 months below the head sentence. Counsel for the appellant on the plea had emphasised the factors personal to the appellant, and had submitted that, if the judge was minded to impose a sentence of immediate incarceration, those factors should encourage him to set a non-parole period which would enable the appellant to get back into his life and take advantage of the support and good prospects which the evidence suggested he had.
There was much in this submission, in my view, to warrant its careful consideration. The appellant was not, I think, either by inclination or pedigree, a career criminal. Rather, he had demonstrated for the whole of his young life that he was prepared to strive to overcome the obstacles which had frequently confronted him. His previous offending appears to have been situational in the sense that it corresponded to times when he was unable, through misfortune, to achieve. Even then, this crime was the first occasion upon which he had embarked upon behaviour which could be described as really serious. It was these circumstances which gave merit to counsel's submission and which warranted a consideration as to whether, when it came to fixing a non-parole period, the appellant should not have been treated differently from his co-offender.
As this Court has said before (R. v. Mulvale[1], in my own judgment at p.11, and R. v. VZ[2]), the fixing of a non-parole period is not a mere sinecure. The public interest requires discrete consideration of those factors which exist in the material before the court which bear upon the question of when the prisoner should be eligible for mitigation of confinement and in favour of rehabilitation under conditional supervision.
[1]Court of Appeal, unreported, 20 February 1996
[2]Court of Appeal, unreported, 3 September 1998, per Callaway, J.A. at p.6
The circumstances of the appellant in this case, as known to the judge and accepted, did require, in my view, such consideration; yet it does not seem to me that they received the degree of consideration warranted. Although this Court is, and should be, slow to interfere with a sentencing judge's discretion in fixing a non-parole period, whether explained or not, I think that the non-parole period fixed by the judge here was beyond that which the facts warranted and, in that sense, clearly excessive. If the other members of the Court are so minded, I would be prepared to set aside the non-parole period fixed by the judge and to order in its place that the appellant serve a period of 21 months before becoming eligible for parole.
CALLAWAY, J.A.:
Although the sentencing discretion is re-opened, as it was in R. v. Pope[3], I agree that the head sentence should be affirmed. The non-parole period should be as the learned President proposes, for the reasons his Honour has given.
BUCHANAN, J.A.:
[3][2000] VSCA 108 at [28] – [29]
I agree.
WINNEKE, P.:
The formal order of the Court will be that the appeal is allowed. The sentences imposed below will be quashed. In lieu thereof we confirm the head sentences that were passed below, namely, three-and-a-half years on count 1 and six months on count 2, making a head sentence of three-and-a-half years. We order that the appellant serve a period of 21 months before becoming eligible for parole.
We declare pursuant to s.18 of the Sentencing Act 1991 that he has served 351 days pursuant to that sentence and we direct that the declaration and its details be noted in the records of the Court.
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