R v McKenna [2014] ACTSC 219

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.

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.

Crimes Act 1900 (ACT), s 23

Crimes (Sentencing) Act 2005 (ACT), s 118

1. 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.

2. 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 victim] was inside his residence playing music loudly. The offenders knocked on the front door and [Mr McKenna] said through the door, "It's Andy, open up."

[The victim] opened his front door and [Mr McKenna] and Mr Baldini immediately rushed at [him], pushing him into the hallway and against a wall adjacent to the entrances of the bedroom and lounge room.

Mr Wallace entered the apartment leaving the front door open. Once inside he went to the kitchen area and searched the freezer for drugs. He left the kitchen area and went into [the victim]'s bedroom and searched his room. Shortly after he went into the kitchen and continued searching the kitchen. While in the kitchen he located a packet of ... paracetamol tablets and placed them in the bag he was carrying. He also found and put in his bag a packet of haemorrhoid tablets and a packet of tablets containing codeine.

[Mr McKenna] and Mr Baldini began striking the victim to the head a number of times. [The victim] was pulled to the ground and into the lounge room and [Mr McKenna] and Mr Baldini again punched him to the face and neck. [The victim] was bleeding from his face and mouth.

Mr Wallace told [Mr McKenna] and Mr Baldini that he had not found anything and they should leave. The three offenders ran from [the victim]'s apartment.

3. Mr McKenna was not charged until September 2013, not long after his mother had died. He pleaded guilty in the Magistrates Court in January 2014. Although this guilty plea took a while coming, the prosecutor concedes that there was a good reason for that (relating to Mr McKenna's legal representation) and it should be accepted as an early plea. In any case, there is a clear utilitarian value in a plea being entered before the matter is committed to the Supreme Court for trial, and accordingly there will in due course be a significant sentencing discount.

4. Mr McKenna has spent no time in custody in relation to these offences.

5. The statutory aggravating factor of the offence was that Mr McKenna committed this burglary in company. It was a serious and apparently premeditated home invasion involving significant and apparently gratuitous violence, in that the statement of facts does not explain why the sustained assault by two of the offenders on the victim was necessary to prevent the victim obstructing the search for drugs and cash. A somewhat different perspective is put on this issue by some of Mr McKenna's discussions with his psychologist, Leesa Morris, which I shall mention later.

6. While Mr McKenna and Mr Baldini inflicted the beating on the victim, and Mr Wallace merely searched the apartment for drugs, there is nothing in the statement of facts that identifies any one of the three offenders as the instigator or leader. On the other hand, Mr McKenna told his psychologist that he did it, that he shouldn't have done it, and that "the other guys weren't really part of it they just came along".

7. Although Mr McKenna did not express any remorse to the Pre-Sentence Report author, he did acknowledge that his actions were wrong. To the psychologist, Ms Morris, however, he gave a much more detailed description of the circumstances of the offence and his feelings about it:

Mr McKenna reported that he had not planned to injure the complainant "I think I went over there to yell at him but I just lost it." He stated "ultimately I did it, I shouldn't have done it; the other guys weren't really part of it they just came along."

When asked about the events leading up to the offence Mr McKenna stated that he was "living with Dylan, It was after I broke up with Jess. We just smoked weed all day and played the computer. His friends came over and they told me how they were raped by this guy and had stuff stolen from them. They said they wouldn't come forward because they were scared and ashamed. I thought, how could I let this happen? They said the police couldn't do anything for three years. I wanted to go and punch the guy in the face, and I did, a lot. I stopped because I thought I was killing him."

Following the offence he stated "I couldn't sleep for days, I thought I'd killed him. It was the first time I'd done speed. I'm always angry about stuff but I've never done anything, I've never hurt anyone before. It was like they [the people in the house] riled me up on purpose, I don't know why I did it." Mr McKenna continued "I said to Peter in the car [after the offence], why did we do this? I couldn't talk to anyone or look at anyone straight for weeks after. I just bashed up someone I didn't know and they could have made up this story." ...

In regard to his behaviour, Mr McKenna stated "I'm sure it was unjust, I always think before I do things. I've never just gone and done something."

8. In oral evidence before me, Mr McKenna was asked how he felt about his offence and the effect it would have had on the victim. He said that it had been one of the darkest points of his life and that he felt ashamed, and said:

Well, ... there was a long period of time where I wouldn't open the door for anybody because if I was capable of doing that then I feared that anybody would be capable of doing what I did. ... I didn't know him at all. I just walked in and hurt him quite badly.

9. Mr McKenna was 20 when the offence was committed and is now 22. He has no criminal history. He has, however, had a difficult childhood, the most useful summary of which is provided by the CADAS report:

Mr McKenna ... was born and raised in Canberra with his three siblings. ... his parents separated when he was 4 years of age and he was raised by his father from this time. ... His mother had a mental illness, (schizophrenia) and she moved out of the family home. ... [Mr McKenna] had regular contact with his mother following his parents' separation.

... [Mr McKenna's] father provided a stable and caring environment for him and his siblings. He ... completed year 12 at school and commenced university study [but] has not continued with his programming course at this time. He ... has worked in casual and part-time jobs since he was 12 years of age, and this has included garden maintenance work; landscaping work; night shift at K-Mart; factory work at Hume and employment in Kingsley's Chicken Shop. ...

Mr McKenna's ... mother died in May last year. ... [This had] been a significant trauma for all family members to deal with. ... His mother had been struggling with drug use and was living in Tamworth at the time of her death. Mr McKenna ... had been trying to help his mother in the months before her death and ... this trauma had been compounded for him by the fact that he has never been formally informed as to the circumstances of her death. Mr McKenna [said] that he had been smoking "a lot of cannabis" to cope with his mother's illness and drug use and following her death, he ceased all cannabis use "overnight".

Mr McKenna also ... experienced another significant trauma last year when his fiancé and partner of four years, "...left me for my best friend ..;".

10. Drug abuse was relevant in this offending and appears to be closely related to Mr McKenna's significant mental health problems, which are in turn closely related to the difficulties arising from his relationship with his mother and the impact of her death.

11. Those difficulties are summarised by Ms Morris as follows:

Mr McKenna presented as a sensitive young man with a history of impaired emotional development. His reports of his emotional history indicate that Mr McKenna was placed in a position where he felt emotionally responsible for his mother at an early age, and that this has been a factor in other relationships throughout his life. Mr McKenna's inability to influence his mother's behaviour and resolve her emotional distress is likely to have impacted on his own mood and reportedly been expressed as anger and aggression. His grief at her death, and the complications caused by the nature of Mr McKenna's parentified relationship with his mother, now appear to be too confronting for him and he is relying on suppression. Such a maladaptive coping strategy is unlikely to be successful in the long term, and is a risk factor in Mr McKenna maintaining his abstinence from substances. It is also explanatory of Mr McKenna's flat affect and difficulty in processing emotional remorse for the complainant, while being able to cognitively project the impact of his actions.

12. Mr McKenna appears to have begun to use illicit drugs in his mid-teens; he has experimented with a variety of different drugs, but relevantly had been using amphetamines (speed) for some weeks around the time of the offence. He had used cannabis for some years on a regular basis. However, this changed when, at 18, he moved to Tamworth to live with his mother who was herself struggling with drug addiction. It seems that Mr McKenna began using cannabis in substantial quantities in the hope of trying to deter his mother from using other drugs that he believed were more dangerous for her.

13. Mr McKenna said that he had not used cannabis since his mother's funeral, having realised that cannabis had been bad for his mother and not wishing to suffer in the same way. He claims he is not currently using any illicit substances, has given up tobacco and only rarely consumes alcohol since he finds it increases his anxiety.

14. The Pre-Sentence Report author noted that Mr McKenna "has a history of drug abuse which he does not appear motivated to address at this time", but the CADAS report notes no current drug use and reports claims by Mr McKenna that after undertaking a telephone assessment for Directions Alcohol and Drug Counselling Service, he was told that he did not need counselling because he was not using drugs anymore. Mr McKenna is, however, attending continuing counselling with a psychologist, to help him deal with the various unresolved issues from his complicated childhood and adolescence, and I note that he began that counselling earlier this year of his own accord.

15. Ms Morris's report makes it clear that psychological support to deal with his emotional and mood difficulties, in particular to help him deal with his emotional history and grief regarding his mother, are important, but also mentions that substance abuse counselling might be helpful to support Mr McKenna in maintaining his current abstinence.

Mr McKenna impresses as a quick-thinking young man who is able to reflect on his actions, although is reluctant to engage with his own emotional processing. With more adaptive coping strategies and an opportunity to address his emotional history and identity development Mr McKenna is likely to pose a low risk of re-offending. Without such intervention, and given his reported behaviour and lifestyle changes since his offence, Mr McKenna is likely to be at moderate risk of re-offending.

17. Both Mr McKenna's co-offenders have already been sentenced on early pleas of guilty.

18. Mr Baldini, who was apparently 19 at the time of the offences, had an unremarkable but apparently largely positive childhood and upbringing. He had, however, been using alcohol and cannabis since he was 15 and had at the time of the offence been using ice, which he had begun when he was 19. Mr Baldini was sentenced on the basis that he did not know the victim but was under the influence of drugs and just went along with the others. Mr Baldini's sentencing was deferred for six months on the basis that he would be sentenced to a period of about 24 to 32 months imprisonment and, depending on his rehabilitation progress, that would be served either partly in full-time custody with a non-parole period or partly in periodic detention with the remainder suspended.

19. Mr Wallace appears to have been the youngest of the offenders and was sentenced only for the burglary, not the actual bodily harm offence. He suffered an abusive early childhood, but then spent 10 years in good foster care until he was 16. He has experimented with a number of drugs but had engaged in regular cannabis use, which he was attempting to stop. Mr Wallace had lived independently from the age of 16 and had formed a reasonable relationship with his natural father. He had been employed and had supportive references. Mr Wallace was sentenced to two years imprisonment, which was fully suspended with a two-year good behaviour order and 250 hours community service.

20. Offences of this kind require general deterrence, and it is not clear to me that Mr McKenna's psychological difficulties are such as to make him an inappropriate vehicle for that general deterrence. It is also important to ensure that he is personally deterred from future further behaviour of this kind.

21. Mr McKenna has addressed some of the matters to which this offending can be attributed, but there is some way to go. Although the Pre-Sentence Report says that "a deferred sentence is not required at this time", no reasons are given, and the Pre-Sentence Report does not say that Mr McKenna would not be suitable for such an order. It seems to me that this is an appropriate case in which to defer sentencing, to give Mr McKenna an opportunity to address his criminal behaviour and the risk factors that contributed to that behaviour before he is finally sentenced, and I am also satisfied that if he can do so, I might not impose such a severe sentence as might otherwise be appropriate. The main risk factors I refer to are Mr McKenna's unresolved grief and other issues arising from his relationship with his mother, her struggles and her death, and the associated substance abuse. Although I am told there is no current substance abuse, I would not be confident that Mr McKenna would not relapse until more work has been done on the psychological issues.

22. For the purpose of making a deferred sentence order, I note that I am also satisfied that:

(a) Mr McKenna is about to be convicted of the current offences, but has not yet been sentenced;

(b) he is not currently serving or liable to serve a term of imprisonment for any offence other than those for which I am sentencing him; and

(c) I may release him on bail.

23. Mr McKenna, please stand. I record convictions on one charge each of aggravated burglary and intentionally inflicting actual bodily harm. I require you to appear before this court at 9.30 am on Tuesday 21 July 2015 to be sentenced for those two offences.

24. When I set the new bail conditions, they will also include a requirement that you come back to court two or three times during this year, just for a check-up, and to make sure that your rehabilitation is progressing as intended. What that means is that at each point you will need to focus on making it through to the next check-up point, rather than through the whole year.

25. Section 118 of the Crimes (Sentencing) Act 2005 (ACT) requires me to give you an indication of possible sentencing if you comply with the orders and the bail conditions, and possible sentencing if you do not. So I indicate to you first that if you do not comply with this deferred sentence order and with the bail conditions that I will set shortly, and especially if you re-offend in the next year, then when you come back for sentencing on these matters, you are likely to receive a total sentence of imprisonment of two years, including a reduction for your pleas of guilty, some of which will almost certainly be served in full-time custody or periodic detention, depending largely on the gravity of any re-offending.

26. If, on the other hand, you can comply with the bail conditions that I set, keep away from illicit drugs, cooperate with Corrective Services supervision and avoid offending in the next 12 months, you are likely to receive the same sentence of two years imprisonment but fully suspended subject to a two-year good behaviour order, to which I might attach some community service.

27. In summary, what that means is that if you can do the right thing for the next year, Mr McKenna, you will still have a two-year prison term hanging over your head, but that will be able to be dealt with by you complying with a good behaviour order for those two years. If you don't do the right thing, you're looking at some months at least in periodic detention, possibly in full-time custody, and then parole or a good behaviour order for the rest of the sentence.

I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.