R v McKenna [2015] ACTSC 253

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes Act 1900 (ACT), s 23

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

2. 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.

3. 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.

4. 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.

5. 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.

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

7. 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 negative for drug use and that he had been making good progress with his counselling. He had also continued to operate a landscaping business.

8. Mr McKenna appeared again in March 2015, and again seemed to be making good progress.

9. For today's sentencing I have been provided with:

(a) a bail progress report;

(b) a letter from Mr McKenna's father; and

(c) a report from Mr McKenna's psychologist.

10. The bail progress report confirmed that recent urinalysis had also returned negative results.

11. There has been no re-offending since the original offences.

12. The bail progress report and Mr McKenna's father have noted Mr McKenna's efforts to find full-time work, with the bail progress report author making the obvious point that these offences have made it more difficult for him to find work. One can only hope that once the uncertainties surrounding this sentencing are resolved the search will be slightly easier.

13. Mr McKenna's psychologist, Noel Eastwood, reported that he had seen Mr McKenna 14 times since I deferred his sentencing. He noted that Mr McKenna's mental health seemed to be improving, that he has joined a club that offers positive and creative recreational pursuits, and that he remains committed to finding employment. In particular, Mr Eastwood noted that Mr McKenna "is starting to let go of the burden he has placed upon himself regarding his mother's death". He noted that although continued therapy would be useful, Mr McKenna was now at the stage where he could choose to see a psychologist on an "as needed" basis.

14. Mr McKenna's father concluded that although his son still suffers from some anxiety, he was now "a much calmer young man", and said that he could see a positive future for his son.

15. When I deferred Mr McKenna's sentencing I gave him, as required, an indication of likely sentencing outcomes if he did and did not comply with the terms of the deferral. In each case, the sentence I proposed was a total of two years imprisonment, to be fully suspended if Mr McKenna had complied and to be served in part- or full-time custody if he did not.

16. Given that Mr McKenna has complied with all the conditions I imposed, it is appropriate that I sentence him in line with that indication. Indeed, it seems to me that some further minor reduction in the length of the prison term is justified by his achievements in the course of the last year.

17. At that stage, last year, I mentioned that the suspension of the sentence might be accompanied by some community service, but also having regard to Mr McKenna's compliance with the order and his demonstrated and so far unwavering commitment to rehabilitate himself, I consider that there is no need to make a community service order and good reasons not to. Those reasons relate to the risk of putting Mr McKenna back in contact, through his community service, with more experienced offenders, and also to the extra difficulty a community service order would create for Mr McKenna's efforts to find employment.

18. Mr McKenna, please stand. I note the convictions already recorded on the charges of aggravated burglary and intentionally inflict actual bodily harm.

19. I now sentence you for the aggravated burglary to imprisonment for 18 months, reduced from 24 months for your plea of guilty, and for the actual bodily harm offence, to nine months imprisonment, reduced from 12 months. The second sentence, the actual bodily harm sentence, is to run concurrently with the first sentence for six months, and to be accumulated as to three months, giving a total sentence of 21 months imprisonment.

20. The sentence will be immediately suspended, and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 21 months, subject only to the core conditions of the good behaviour order.

21. You will be given a written copy of the good behaviour order, and it will be read to you by court officials, but the most important condition of that good behaviour order is that for the next 21 months, you need to keep out of trouble, and especially you need not to re-offend. If you do commit another offence during that time, or if you otherwise breach your good behaviour undertaking, you may find yourself back before this court to be re-sentenced for these offences, and if you have re-offended and especially, Mr McKenna, if you have re-offended in any similar way to the offences that I am dealing with now, you could well find yourself serving some of the sentence in full-time custody.

22. If you have any particular questions about the order, please ask your lawyer Mr McKenna who will be happy to explain, I am sure.

23. Mr McKenna, you have done very well and I hope that you will maintain your progress, especially in terms of avoiding substance abuse and looking after your mental health. You have heard the exchange earlier between me and your counsel and Mr Fernandez, and you understand that the fact that I have decided not to involve Corrective Services in keeping an eye on you means that really the responsibility is now entirely on you and your long-suffering and supportive father, so I hope you will not get careless about that. I also hope that you will now be better placed to find some fulltime work and, in due course, to find a satisfying career for yourself.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.

Annexure 1 (extract from original sentencing remarks)

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.