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[2020] ACTSC 254
Supreme Court of the ACT
2020-08-28
Burns J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: R v McHenry
Citation: [2020] ACTSC 254
Hearing Date: 28 August 2020
Decision Date: 28 August 2020
Before: Burns J
Decision: See [14]–[19]
Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – threatening to inflict grievous bodily harm – possession of knife in public place – consideration of longstanding drug and alcohol issues
Legislation Cited: Crimes Act 1900 (ACT) ss 31, 382(1)
Parties: The Queen (Crown) David Andrew McHenry (Offender)
Representation: Counsel P Dixon (Crown) A Doig (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender)
File Numbers: SCC 32 of 2019; SCC 33 of 2019
BURNS J:
David McHenry, you have entered pleas of guilty to one charge of threatening to inflict grievous bodily harm contrary to s 31 of the Crimes Act 1900 (ACT) (the Crimes Act) (CAN 652/2019) and one charge of possession of a knife in a public place without a reasonable excuse contrary to s 382(1) of the Crimes Act (CAN 14847/2018). The maximum penalty for the offence of threatening to inflict grievous bodily harm is five years' imprisonment and the maximum penalty for the offence of possession of a knife in a public place is six months' imprisonment, a fine of $16,000 or both.
A conviction with respect to the charges before me would also result in you being in breach of a Good Behaviour Order which was imposed in the ACT Magistrates Court. I will come back to that in a moment.
I note that the offences before me occurred on 18 December 2018 and you entered your pleas of guilty on 2 September 2019 on the first day of your trial for these charges. You spent 258 days in custody from 18 December 2018 until 2 September 2019.
The facts
An Agreed Statement of Facts has been tendered. I will not read those facts at the present time. It is sufficient to note that at about 11am on 18 December 2018, you made numerous phone calls and sent several text messages to the victim, insulting her and threatening to “gut her like a pig”. At about 7pm that day, you attended the victim's address in Curtin, ACT, to collect your bongo drums. While at the front porch of the address, you firmly held a knife to her neck and threatened to “gut her like a pig”. You left but you were arrested a short time later. You were searched and police found and seized a silver coloured knife that was secreted in the rear of your pants.
The offence of threatening to inflict grievous bodily harm which is revealed by the facts in this matter is a serious offence. The threat was made to a female victim when she was on her own and therefore vulnerable. You had a knife with you at the time which you held in the vicinity of her neck whilst you threatened her. It also occurred at the victim's own home, a place where she should be entitled to feel safe. I also take into account that you were subject to a Good Behaviour Order at that time.
Subjective features
You have a previous criminal history. That history is not insubstantial, but it is by no means the worst that I have seen. The history is suggestive of longstanding alcohol and drug issues which is supported by other material which has been put before me in the sentencing hearing. Little leniency can be shown to you on the basis of your criminal history.
I note that a Pre-Sentence Report and an Updated Pre-Sentence Report were prepared for the sentence hearing. You were raised in the ACT, but you had a childhood marred by your father's alcoholism and violence. You have six siblings, but you apparently have little contact with them. Your father is now deceased, but you maintain contact with your mother who now lives in Queensland. You left home at the age of 15 years and spent several years hitchhiking up and down the east coast of Australia.
You have two adult children. You continue to have some contact with your son, but you have little contact with your daughter. You currently reside in stable accommodation in an ACT Housing property. You left school at the end of Year 10 and you have engaged in employment in fruit picking in the past.
The Reports before me confirm that you have longstanding alcohol and drug issues. You also have longstanding mental health issues. You have been diagnosed with anxiety, depression and Complex Post-Traumatic Stress Disorder. You have a history of self-harming ideation and behaviour.
Following your most recent release from the Alexander Maconochie Centre (AMC), you have been assisted by Catholic Care to access ACT Mental Health Services and also services provided by your General Practitioner. You commenced appropriate medication. You were supported by the Community Mental Health team in the community. They have now closed your file. You are currently being supported by Access Mental Health service and your General Practitioner. It is reported that you have had difficulty complying with your medication regime while in the community. It is heartening to note that during bail supervision on your present bail undertaking, you commenced counselling sessions targeting mental health issues and social isolation.
Whilst there is evidence before me of longstanding mental health issues, there is no material before me to link those conditions to the present offending, either directly or indirectly. I do, however, take into account those conditions as part of the background which is before me.
I note you entered a plea of guilty at a late time. Had you entered an early plea of guilty, a reduction in sentence of approximately 25 per cent may have been available to you. While your plea was quite late, I take into account in that regard that you do suffer from mental health conditions such as anxiety and depression which I think I am entitled to infer have some impact upon your cognitive processes. I also accept that whilst the pleas of guilty were quite late, they still had a degree of utilitarian value. I propose to reduce by approximately 10 per cent the sentences that I would otherwise have imposed because of your pleas of guilty.
My starting point is a term of imprisonment. It has been accepted, and rightly so by your counsel, that the offence of threatening to inflict grievous bodily harm, which you committed, is one which calls for a term of imprisonment. The real question is whether that is a term of imprisonment which requires you to serve any further full-time imprisonment or whether the period of time that you have already served would be sufficient. In my opinion, the period of time that you have already served is sufficient, so I do not propose to sentence you to any further full-time imprisonment.
Sentence
I record a conviction with respect to the offence of threatening to inflict grievous bodily harm (CAN 652/2019). You will be sentenced to 21 months' imprisonment, which I have reduced from two years because of your plea of guilty. That sentence will commence on 13 December 2019 and will expire on 12 September 2021. I have backdated the commencement of the sentence to allow for the period that you spent in custody before sentencing.
The period commencing on 13 December 2019 and expiring yesterday, 27 August 2020, is to be served by way of full-time imprisonment. That effectively takes account of the period of time that you spent in custody awaiting sentence. The balance will be suspended.
There will be a Good Behaviour Order commencing today, 28 August 2020, and expiring on 12 September 2021 with a condition that you are to accept the supervision of the Director-General of ACT Corrective Services or that person's delegate for the period commencing 28 August 2020 and expiring on 12 September 2021 or such lesser period as deemed appropriate by your supervising officer and requiring you to obey all reasonable directions of your supervising officers.
It will be a further condition that you are to undertake such assessments, counselling or treatment as directed by your supervising officers with respect to mental health and drug and alcohol issues.
With regard to the charge of possession of a knife in a public place (CAN 14847/2018), you will be convicted and there will be a Good Behaviour Order for a period of three months’ from today, 28 August 2020. In light of the conditions that I have already imposed on the earlier Good Behaviour Order, I will simply impose the core conditions with respect to that Good Behaviour Order.
You are now in breach of the earlier Good Behaviour Order which was imposed in the ACT Magistrates Court. I propose to simply direct that no further action be taken with respect to that breach.
I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.
Associate:
Date:
R
McHenry [2020] ACTSC 254