DPP v McKean [2018] VCC 63 (7 February 2018)

Last Updated: 14 February 2018

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 17-01528

DIRECTOR OF PUBLIC PROSECUTIONS
v
MATTHEW McKEAN

---

JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	2 February 2018 (Plea Hearing)
DATE OF SENTENCE:	7 February 2018
CASE MAY BE CITED AS:	DPP v McKean
MEDIUM NEUTRAL CITATION:	[2018] VCC 63

REASONS FOR SENTENCE

---

Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. McKenry	Mr A. Cecil Ms E. Margaronis
For the Accused	Mr A. Patton	Ms A. Dosanjh

Pages 1 - 14

HIS HONOUR:

1. Matthew McKean; on 18 December 2017 you were found guilty of seven charges of rape by a jury of your peers at the LaTrobe County Court. The seven charges were on indictment No.C1610861.
2. The jury acquitted you of Charge 5 on that indictment by direction from me as the trial judge. The maximum penalty for each of the seven charges of rape is 25 years' imprisonment.

The circumstances of your offending

3. On 4 April 2015 you attended in the vicinity of the Community Centre in Cowes. You were accompanied by your co-accused, Howard, and your younger brother, Andrew McKean. You were drinking vodka mixed with Solo. You also had marijuana in your possession. Your victim then attended at the Community Centre area in company with a young male friend. Your victim was a 15 year old girl. The victim wanted a cigarette, which was provided by your group to her. The victim's young male friend was not comfortable with the socialising and left and went home. The victim remained with your group and was joined by a male and female friend of hers in the Community Centre area.
4. You, Mr Howard, your younger brother, Andrew, and the victim and her two friends, then walked to the rear of a nearby shop. Behind the shop all of those present were drinking alcohol and smoking cannabis. The victim was obviously intoxicated and started kissing your younger brother, Andrew. After some time the group decided to leave that area behind the shop and walk in the direction of Plover Street in Cowes.
5. You were staying with your grandmother, who lived in Plover Street in Cowes. Mr Bill Dunn owned the premises at 18 Plover Street in Cowes. In the backyard of Mr Dunn’s premises was a garage and some old disused cars.
6. In the rear section of the yard was a disused Ford vehicle. You knew

   Mr Dunn was not living at that address on that day. You told the group to wait in the backyard whilst you went to your grandmother's house two doors up the street to get some marijuana and a smoking device, or bong. The victim's two friends did not want to use the bong and decided to leave the property. The victim decided to stay and got into the backseat of the Ford vehicle with your brother, Andrew McKean. You and Howard got into the front seat of that Ford vehicle. The victim and Andrew McKean were kissing, or "hooking up", in the words of the victim. The victim did not want to have any more cannabis. You and Howard then started cajoling your younger brother, Andrew, along the lines of "Fuck her, or we will", or words to that effect. Your brother did not want to have sex with the victim. The victim was very drunk. Your brother then left the Ford vehicle to go and assist your grandfather with the cleaning up of the market in Cowes. The victim remained in the back seat of the Ford vehicle. You and Howard were in the front seat of the car.

7. In respect to your offending I make the following findings of fact, consistent with the jury's verdict of guilty in respect of Charges 1, 2, 3, 4, 6, 7 and 8.
8. After your brother, Andrew, left the Ford vehicle you convinced the victim to give you her phone so that you could use it as a torch to find some item in the front of the car. You then climbed into the backseat of the Ford vehicle, where the victim was still seated. You removed her underwear and inserted your finger in her vagina. You then put your penis in her mouth. After those two rapes you then put your penis in the victim's vagina. You did not use a condom. After that you have put your finger in her anus. You then rotated your body around in relation to the victim and put your penis in her mouth for a second time, and you were then also putting your tongue in her vagina. The final act of sexual penetration by you was inserting your finger in the victim's vagina either as she was vomiting out of the car, or shortly after she had vomited out of the car. In the course of these sexual penetrations of the victim you have pulled her hair and slapped her in the face at the behest of

   Mr Howard. The victim was yelling and crying in protest of your attack. In the course of the attack she went quiet for a while. She was gagging and gasping for air and trying to vomit. You attacked her knowing she was very drunk and unable to resist your greater physique. You performed these humiliating, heinous acts, all the while knowing you were encouraged and accompanied by Howard in your criminal behaviour.

9. Your offending is a most serious form of sexual offending. You knew your victim was 15 years old. She had told you so. You knew she was drunk and diminutive in stature. It was sickening to hear the matter of fact manner, in which the victim recounted the events of that night. There was no doubt the jury found the victim to be an honest and reliable witness.

The victim impact statements

10. In this case the victim's mother and the victim filed victim impact statements. The victim impact statements were Exhibit A on the plea. The victim's mother requested that her victim impact statement not be read in open court. You have been shown the victim impact statement by your counsel. The victim's mother sets out the level of fear her daughter and she now suffer from going out or being alone. The mother has had to sell her house in Cowes and move to new premises because she did not feel safe in that house. She confirms her daughter has gone from a confident, friendly, kind child to someone who is broken and fearful.
11. The victim also requested that her victim impact statement not be read in open court. She sets out how, as a result of your attack, she has quit her TAFE course at Year 9 level. She says she cannot leave the house alone because she is so fearful. She describes how she was a dancer since the age of four but cannot return to dancing because the dance school was near where she had met you and Mr Howard. She describes nightmares and disturbed sleep. Most importantly, she cannot go anywhere in public unless accompanied by a male, because she feels so fearful and vulnerable. She states that she breaks down a lot of the time and has lost her confidence in being outgoing.
12. These offences have a significant effect on a young girl at a very critical stage in her life. It has temporarily halted her education and left her living in a state of fear for her safety and wellbeing.

Personal Circumstances

13. I turn to your personal circumstances. You were 21 years old at the time of these offences. You are now 24 at the time of this sentence. You have endured an upbringing and childhood marked by disadvantage, disruption and trauma. You are the eldest child of a sibship of four. You have never met your father, as I understand it. Whilst in custody during the trial you met one of your sisters for the first time in Morwell. Your mother was a poly drug user prior to your birth. There have been a number of partners to your mother in your younger years. You witnessed abuse in the family home. You had to move schools on numerous occasions, but managed to complete Year 11. You commenced a carpentry apprenticeship but only lasted a short time. You then, at age 18, worked as a plasterer's labourer.
14. By the time you were 14 you were smoking and drinking to the point of intoxication on weekends. From 16 years onwards you were smoking cannabis. At the time of offending you were using two to three grams of cannabis per day. When you were 19 your then partner lost your child during pregnancy. You commenced using methamphetamine - or ice, as it is known - at that time. You have also used ecstasy. In the course of your poly drug use you have one reported overdose which required hospitalisation at the Royal Melbourne Hospital in September of 2016.

15. You have a significant number of previous court appearances - both in adult and Children's Court. The offences include criminal damage, burglary, drug offences, fraud and arson. At the age of 20 you were detained in a youth justice centre. On the records it appears your detention was for a period of three months, but you reported to Dr O'Meara that you had spent eight months in detention at a youth training centre. Whilst in youth justice you were diagnosed with bipolar affective disorder. There was no medical, or like report, tendered to support this diagnosis, and Dr O'Meara did not diagnose this disorder.
16. You have been examined by Dr O'Meara, neuropsychologist, for the purpose of this plea. She prepared a report dated 22 January 2018. It was Exhibit MK2. Dr O'Meara conducted a large number of psychological tests on you over a period of three hours. The examination tests were conducted at Port Phillip Prison. The testing found that you were a low-average to average for general intellectual functioning. Dr O'Meara's opinion was any deficits in cognitive function had no bearing on your criminal behaviour. In your reporting to Dr O'Meara you vehemently denied ever having engaged in any sexual relationship with the victim. This is consistent with your plea and the manner of the conduct of your trial before the jury.
17. You had the support of your grandmother and grandfather in the course of the trial, and your plea. I note they are here today. They have visited you in custody. You have spent a significant part of your time on remand in protective custody. The expectation is this protective custody will continue as a sentenced prisoner.

Sentencing Considerations

18. I turn to sentencing considerations. The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence - both specific and general - rehabilitation, denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors, such as the seriousness of your offending, your culpability for them, your personal circumstances, and those of your victim. I am required to balance those interests with the interests of the community in denouncing your criminal conduct, with seeking to ensure, as far as possible, you as an offender are rehabilitated and reintegrated into society.
19. As part of the governing principles to be considered in sentencing I must take into account current sentencing practices. The inquiry is directed particularly, but not exclusively, to the kinds of sentences imposed in comparable cases and the statistics at the time of the sentence. I have considered these statistics and current sentencing practices; mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your case, as indeed they are from one another. Of course, current sentencing practices is only one of the considerations I have to take into account when fixing your sentence.
20. You have been found guilty by a jury of seven charges of rape. Under the serious offender provisions of the Sentencing Act 1991 after you are convicted and sentenced to a term of imprisonment in respect of Charges of 1 and 2, I am required, on the sexual offences charges thereafter, to regard the protection of the community from you as a principal purpose for which the sentence is to be imposed. If necessary, in order to achieve the purpose of protecting the community, I am empowered under s.6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offences.
21. This means that the sentencing task in respect of Charges 3, 4, 6, 7 and 8 on the indictment is to be undertaken on the basis that the protection of the community from you is a principal purpose for which the sentence is imposed. To achieve that purpose a sentence may be imposed longer than that which is proportionate to the gravity of the offences, considered in the light of the objective circumstances.
22. Section 6E of the Sentencing Act also requires that unless I otherwise direct - with respect to Charges 3, 4, 6, 7 and 8 on the indictment - the sentences that I impose on you are to be served cumulatively. I note the prosecution did not call for a disproportionate sentence for all the cumulation contemplated either in s.6D or 6E of the Sentencing Act, allowing for the matters that I will outline.
23. In my view it is appropriate to impose only that degree of cumulation to which I subsequently refer; reflecting, as it does, several events of sexual offending by you. To do otherwise may produce a sentence which is not appropriate and unjust.
24. Your counsel submitted that due to the short period of time (and he relied on the evidence of the victim; ten minutes that it took you to commit these seven offences) it was appropriate to assess the charges as being facets of a course of conduct. Mr Patton submitted the substantial, if not total concurrency, should be ordered in respect of the individual sentences. I do not accept that submission. The appropriate manner to sentence you is to fix a penalty for each of the individual charges and then to impose such cumulation that properly reflects the further offending over the offence for which the base sentence is imposed. The total of the cumulation of the sentences is to be moderated by the principle of totality so that the crushing sentence is not imposed. Further, the totality of the sentence reflects a just punishment for the whole of your criminal behaviour on the night of these offences.
25. You have no prior convictions for sexual offences. Nevertheless, you have accumulated more than 40 convictions for property damage, theft, burglary, and aggravated burglary and drug charges. Your criminal history commenced in Geelong Children's Court on 10 June 2009, with charges of arson and other property offences, until your last appearance in Geelong Magistrates' Court on 30 July 2014. You have been sentenced to youth training centre orders in the past of a total of three months. You have breached a community corrections order imposed on 7 March 2014 by Geelong Magistrates' Court.
26. Your criminal history, and the breach of the supervision orders, are indicators of less than a fair prospect for your rehabilitation. Further, I note in the report of Dr Rachel O'Meara that you continue to vehemently deny having engaged in any sexual relationships with the victim. Your failure to accept the jury verdict is an indicator that your prospects of rehabilitation are less than fair. I accept that there has been a long delay between 6 April 2015, which is the date of your record of interview, and August 2016, when you were charged with these offences. The delay was not in any way caused by you. The time between August 2016 and December 2017 is a usual time delay relating to court processes from the date of charging to a jury verdict. I take into account the effect of the delay upon you - in particular, having these serious charges hanging over your head, and the concern it has caused you, when I consider your sentence.
27. Your counsel properly conceded that the Verdins principles were not applicable to your case. Nevertheless, he submitted on your behalf that you were diagnosed as suffering from bipolar affective disorder when you were detained in juvenile detention.
28. Dr O'Meara, in her report, noted about you reporting to her about bipolar disorder, however there was no medical report to confirm the diagnosis of bipolar affective disorder tendered at the plea hearing. A submission was made that the prison authorities are administering Lexapro and Epilim to you, and that these medications are ordinarily dispensed for bipolar disorder. I accept your need to have your current medication regime assessed and reviewed. I accept your report to Dr O'Meara that you denied any psychological symptoms other than disturbed sleep. You were assessed as low-average range of cognitive function. I accept that given the nature of the charges for which you have been convicted - the rapes of a 15 year old child - you will serve the majority of your sentence in protection. You have already served your time on remand in protection. I accept that prison time served in protection is more onerous than general prison population, and I take this into account when fixing your sentence.
29. I take into account the dysfunctional family dynamic you were subjected to in your formative years. Amongst other considerations it has caused a disruptive and dislocated education that finished at Year 11.
30. The offending in this case is of the most serious nature. The victim of the offending was a 15 year old girl. The offences were egregious in the degrading and inhumane treatment of your victim. The factors indicative of the seriousness of the offending are as follows.

(1), the very young age of your victim. She was a 15 year old child at the time of the offences;

(2), you had supplied both alcohol and cannabis to the victim prior to your offending;

(3), you took her to a secluded place - a disused car in the backyard of an absent owner;

(4) your victim was vulnerable - unable to defend herself or escape your offending;

(5), you engaged in multiple episodes of sexual assault upon the victim;

(6), you did not use a condom at any time during your sexual assault or penetration of the victim;

(7), you slapped and pulled the hair of the victim during your sexual assaults upon her. These were acts of gratuitous violence additional to the sexual offending;

(8), you utilised the victim as a sex object for your sexual gratification, with utter disregard for the victim in every sense;

(9), you committed these offences in the company of, and with the support and encouragement of your co-offender, Howard.

31. You will be required to report and to be supervised under the provisions of the Sex Offenders Registration Act for a period of some 15 years. This is an order made pursuant to statute, and is not a consideration that I take into account in sentencing you for the seven charges of rape. You will be given a copy of that order at the conclusion of this sentencing process.
32. At the time of the offence you were 21 years old. You are now 24. Whilst you are not properly described as a youthful offender, you are a relatively young offender. In general, rehabilitation considerations are to be far more important than general deterrence for young offenders. In a case such as this, where the degree of criminality of your offending requires the sentencing objectives of deterrence - that is specific and general - denunciation and just punishment and the protection of the community to be more prominent in the sentencing calculus, then the weight attached to your relative youth is correspondingly reduced. I have moderated the totality of your sentence to take into account your age - both at the time of the offending and at the time of the sentence.
33. Your role in these offences is different and more dominant than your co-offender. This difference, and your significant criminal history, removes the principles of parity in sentencing - in your case relative to your co-accused. The totality of your offending calls for a substantial term of imprisonment to mark out the considerations of specific and general deterrence, denunciation of your offending and the protection of the community. I have fixed a non-parole period that allows for you to take advantage of the parole system to assist you to re-enter society and turn your life around after serving a long term of imprisonment for someone of your age.
34. Will you both stand please?
35. Mr McKean; in respect of Charge 1 you are convicted and sentenced to five years' imprisonment.
36. In respect of Charge 2 you are convicted and sentenced to seven years' imprisonment.
37. In respect of Charge 3 you are convicted and sentenced to seven and a half years' imprisonment.
38. In respect of Charge 4 you are convicted and sentenced to five years' imprisonment.
39. In respect to Charge 6 you are convicted and sentenced to seven years' imprisonment.
40. In respect of Charge 7 you are convicted and sentenced to five years' imprisonment.
41. In respect of Charge 8 you are convicted and sentenced to five years' imprisonment.
42. I order the following cumulation. The base sentence is Charge 3, which is a seven and a half year sentence. The cumulation is as follows.
43. Of the sentence in Charge 1, four months;
44. In the sentence in Charge 2, six months;
45. In the sentence in Charge 3, four months;
46. In the sentence in Charge 6, six months;
47. The sentence in Charge 7, four months;
48. The sentence in Charge 8, four months - are all to be served cumulatively upon the base sentence. That is a total effective sentence of nine years and ten months' imprisonment. I fix a non-parole period of seven years and three months.
49. I declare that you have served 420 days. Is that an accurate calculation to date?
50. MR PATTON: That's correct.
51. HIS HONOUR: Yes.
52. MR McKENRY: Yes, Your Honour.
53. HIS HONOUR: Four hundred and twenty days of pre-sentence detention. I order that you be placed on the Sex Offenders Register for a period of 15 years, and I have signed the disposal order.
54. HIS HONOUR: We'll just have these two sex offender register paperwork prepared. Does that cover all issues, members of counsel?
55. MR PATTON: Yes, Your Honour.
56. MS CANNON: Yes, Your Honour.
57. HIS HONOUR: Thank you.
58. MR McKENRY: Your Honour, could I ask for a clarification on the accumulation for Mr Matthew McKean's charges?
59. HIS HONOUR: Certainly.
60. MR McKENRY: On my hearing Your Honour gave a cumulation for Charge 3 rather than Charge 4.
61. HIS HONOUR: Did I? I'll just clarify it fully. The cumulation is as follows. The base sentence is Charge 3 - that's seven and a half years - and then the cumulation is as follows. Charge 1, four months; Charge 2, six months; Charge 4, four months; Charge 6, six months; Charge 7, four months, and Charge 8, four months.
62. MR McKENRY: Thank you, Your Honour.
63. HIS HONOUR: Did you understand that?
64. MR McKENRY: Yes, Your Honour.
65. HIS HONOUR: Yes, thanks. When these sex offender register documents are printed I'll ask counsel to go and explain it to them.
66. MR PATTON: Yes, Your Honour.
67. MS CANNON: Yes, Your Honour.
68. HIS HONOUR: Thank you. I think that completes the sentencing process.
69. MR McKENRY: Yes, Your Honour.
70. HIS HONOUR: I just want to thank counsel and their instructors over the course of this proceeding - both trial and the pleas - for your assistance in the conduct of this matter. It's obviously very difficult for everyone and I want to thank you.
71. MS CANNON: Your Honour pleases.
72. MR PATTON: As Your Honour pleases.