Director of Public Prosecutions v Baker-Kenneison

[2016] VCC 65

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-15-00072

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEIGH MATTHEW BAKER-KENNEISON

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	15 December 2015
DATE OF SENTENCE:	8 February 2016
CASE MAY BE CITED AS:	DPP v Baker-Kenneison
MEDIUM NEUTRAL CITATION:	[2016] VCC 65

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – kidnapping – intentionally cause injury – threat to inflict serious injury – robbery – parity

Legislation Cited:     Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)

Sentence:Convicted and sentenced to 3 years and 6 months imprisonment with a non-parole period of 10 months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Triandos	Solicitor for the Office of Public Prosecutions
For the Accused	Mr B. Newton	Chester Metcalfe & Co

HIS HONOUR: 

1Mr Leigh Matthew Baker-Kenneison pleaded guilty to four charges in Indictment No.E12142915 before this Court on 15 December 2015.  On that day, Mr Peter Triandos appeared on behalf of the Director and appears again today, and Mr Newton represented Mr Baker-Kenneison, as he does today.

2These offences took place on the 13 November 2011, when Mr Baker-Kenneison was aged 22, he is now aged 26.  He has four children of his own, and is responsible for another child of his then current partnership.

3As I said, the plea of guilty to the four charges on the Indictment, were firstly a serious charge of kidnapping.  Such is an offence pursuant to the common law.  Indeed, he was the victim in all charges.

4The second charge was one of intentionally cause serious injury, for which the maximum penalty for a breach of s.16 of the Crimes Act is one of ten years.

5The third offence is one of threaten to inflict serious injury, a breach of s.21 of the Crimes Act, for which the maximum penalty was five years.

6And finally, the charge of robbery, a breach of s.75 of the Crimes Act, for which the maximum penalty is one of 15 years.

7The prosecution tendered, by way of assistance to the Court, on 15 December, an amended summary of prosecution opening.  That was tendered as Exhibit A.  The details insofar as the crime itself are set out from paragraph 7 down to paragraph 17.

8The kidnapping essentially was a crime of joint responsibility.  The intentionally cause injury occurred when the victim was inside the car, and indeed the prisoner was seen to be striking him in the backseat as a car passed the victim's friends.  As set out at paragraph 11, it was indeed the prisoner who held the victim in a headlock in the backseat, and further elbowed him to the face on several occasions.

9There were further threats made, threats of some seriousness as to infliction of serious injury, and ultimately when the car arrived at an industrial area in Tullamarine, the victim was made to strip off from his clothing down to his underwear, remove his jewellery, and then was subject to a robbery.

10It is accepted that this prisoner did not gain from that robbery, and that all of the goods were taken by O'Connor.  It was accepted between the prosecution and the defence that O'Connor was certainly the major player in this matter.  However, that does not relieve Mr Baker-Kenneison of the consequences of being involved in the serious offences of kidnapping and robbery.

11The maximum penalty in regard to kidnapping, which I had not set out, is one of 25 years.

12I dealt with Mr O'Connor in this Court on 15 May 2012.

13Insofar as the prisoner's priors, as at the time of this offence, it is clear that they were not extensive.  However, since that time as has already been indicated today, through a breach of earlier orders and other criminality, Mr Baker-Kenneison is now serving a period of gaol, unlike at the time of the offending; he had not previously been to gaol.

14The victim impact statements became Exhibits respectively B and C, Exhibit B being sworn or signed on the 17 April 2012, and Exhibit C being signed on the 12 May 2012.  Exhibit D was a statement of the victim’s partner.

15It seems to me in the circumstances that the statements made by the victim were nothing exceptional, given the serious concerns he would have had while this criminality was taking place.  In the O'Connor sentence, I pointed out at paragraph 49 that it seemed to me appropriate to say again that the learned prosecutor submitted that, albeit lasting almost an hour, the criminality was prolonged and indeed was a violent incident involving the victim.  I said at that time, given the particular circumstances of what happened, a frightening experience for such victim, and consistent with that I did not think his statements made in the victim impact statement, which apply again in this case, were exaggerated in the least.

16Insofar as the prior matters were concerned, that is the actual prior offences, which are the only matters that can be taken into account as priors, the sentencing remarks of Judge Duggan were tendered.  That became Exhibit E.

17I was advised as to the circumstances of the prior offences.  The offence for which he was convicted on 1 March 2011 essentially involved the consequences of a fight with his then partner.  Unfortunately, it also involved the partaking of drugs at the time, in particular Xanax.  As a result of his condition, apparently he was jumping in front of cars, ripping wipers off cars, and that is the reason for the intentionally damage property and the combination of matters that made up that case.

18The other matter, going back to 18 March 2010 occurred when he was approximately 20.  Again, in this instance not affected by drugs, but apparently drunk on Jim Beam.  There was a fight.  There was a use of apparently a stick to obtain a wallet, which was subsequently given back, and despite the seriousness of those offences as they read, as I said, he was given a suspended sentence.

19It is unfortunate that some considerable time later, when one sees the subsequent prior sheet, he then breached those orders, and indeed as we now know, as a result of the breach of that sentence, was sentenced by the Melbourne County Court on 30 May 2014 to a maximum sentence of two years.

20Mr Prosecutor, I am unable to determine in looking at those what was the minimum?  Because it was a combination of that breach, in particular then further burglary matters which also breached, and from the particulars I just cannot work out what was the minimum.  It does not really matter.

21MR TRIANDOS:  The minimum was 18 months, I'm told, Your Honour.

22HIS HONOUR:  It was 18 months, was it?  It is just not set out.  I knew it had to be approximately that when you did the figures, because I think it was September that he was due for release otherwise.  All right, I will just make that statement for acknowledgment.

23Insofar as compensation is concerned, I have already signed a joint order for compensation for the victim in the sum of $1,350.  There is, as I have already explained, no pre-sentence detention in regard to this matter, because the service of the current sentence, of which he is serving, represents the totality of the service inside gaol, and has been confirmed, the current sentence expires I think approximately on the 2 March 2017.

24Insofar as the plea, tendered as Exhibit 2 were the submissions made by Mr Newton, of which I found them to be of much assistance.  There is no doubt, due probably to, or a lot to do with losing his mother at an untimely time, he had very significant difficulties in his younger years, and was subject to significant disadvantage.

25The prisoner became a father at quite a young age, as I have said; he has four biological children and considers himself the father of another child born to his second partner.  He has had particular issues with what has been diagnosed by Mr Aaron Cunningham, psychologist, dated 7 December 2015, with what is described as borderline personality disorder.  That has led to the need for antipsychotic medication, and it is noted that while he has been in prison, it appears he has been treated on the basis of suffering from some form of bipolar disorders.  All of those matters, of course, have to be taken into account.

26Going to Dr Cunningham's report itself, the analysis as to the borderline personality disorder is made on p.3 of the report.  There is, fortunately, no intellectual impairment.  It is remarked by Dr Cunningham the difficulties of his upbringing.  The comments made by the doctor are positive insofar as his future is concerned, providing he does not participate in drugs again.

27It is noted that the offending which I am dealing with, occurred in the context of the particular associations he was making at the time, no doubt connected with his own ice abuse. Dr Cunningham was of the view that Mr Baker-Kenneison presents with protective factors which could reduce his risk and improve his prospects of rehabilitation.  He is motivated to engage with support services.  He has ceased use of methylamphetamine and is motivated to maintain stability and provide a role model ultimately to his own children.

28In support of that submission is the statement from the Bar table today as to the consistency of the urine reports. Exhibit 6 was a letter tendered to the Court on, the day of the hearing, from Mr Baker-Kenneison, in which he expressed his desire to ensure that these criminal issues in his life do not occur again, so that both him and his children have some future.

29It was stressed that while in gaol he has been taking appropriate steps to re-educate himself, and to provide himself with background, both to cope with life and employment once he does get out of gaol, and those matters were tendered in total as a bundle of certificates received while he has been in the Corrections Department, and they were made Exhibit 5.

30Taking all of those personal matters into account, the submissions made stressed the early plea in the matter when the matter finally came on, despite the delay. It also stressed the value of the plea.

31I am told that this is conceded by the prosecution, and that there was clearly factually considerable delay.  It may well have been that there may not have been a prosecution.  In fact, it was withdrawn at one stage.  However, due to the evidence of a co-offender and the undertaking by that co-offender to give such evidence, there appears to be a determination made by the prisoner to plead to these charges.  The plea in the circumstances is to be seen as a valuable plea, and to be utilitarian plea, because had the trial proceeded, it would have been one of considerable length.

32The other matters stressed by Mr Newton were his good prospects, although of course that all depends on him maintaining that freedom from drugs.  What was also stressed was, consistent with that Exhibit 5 letter from the prisoner, his genuine remorse.

33The principles as to totality, and it is a difficult issue in this case.  There is no pre-sentence detention.  However, given the fact that he was subsequently sentenced, it would appear that as at about 4 September 2015, the prisoner became eligible for parole on his current sentence, but of course parole was not possible because he is awaiting sentence in this matter.  I accept, and it was accepted by the prosecution, that that matter needs to be taken into account in the sentence.

34Insofar as additional matters, it is noted that while he has been in prison, there has been a need for him to serve time in protection, and there have also been recent difficulties insofar as issues impacting the prison, totally unrelated to the prisoner.

35The essential submission of Mr Newton set out at paragraph 81 of his submission was that the sentence received for the subject offending ought to be served concurrently with his existing sentence for subsequent offending, which is due to be completed on or about March of 17.  That is, if he served the full sentence.

36Technically, I cannot make a sentence in that regard, because s.14 does not apply.  I take, however, into account the matters that have been put in particular on the last page of Mr Newton's submission, where he spoke of the sentence given to O'Connor of difference of age between the two at the time, the substantial difference in the priors in O'Connor.

37As I said in the O'Connor sentence, while you do not come to be sentenced again for that, there is no doubt that his priors at the time involved a considerable number of offences for violence, and it is accepted that O'Connor played a much bigger role in this offending, despite the fact that the main reason for all of the offending, one would imagine, was simply to obtain drugs.

38At all times, of course, it was conceded by Mr Newton that given the seriousness of the matter, gaol was the appropriate sentence.

39One must not, of course, lose sight of the fact that the prisoner is still only 26.  He still has the support of his auntie and father who are here again today.  And doing as best I can, I have determined to sentence, therefore, the prisoner as follows.  If you would be good enough, Mr Baker-Kenneison, to stand up, please.

40On the first charge of kidnapping, you will be sentenced to a period of imprisonment of two-and-a-half years.

41On the second charge, intentionally cause injury, a period of nine months imprisonment.

42On the third charge, threat to inflict serious injury, a period of 18 months imprisonment.

43And on the fourth charge, robbery, a period of ten months imprisonment.

44Using the first sentence as the base sentence, I will order that cumulative upon that period be imposed a period of six months of the sentence imposed on Count 2, and six months of the sentence imposed on Charge 3, and that they be served cumulatively with each other and with the sentence imposed on Charge 1, making a total period of imprisonment to be served of three-and-a-half years.

45Doing as best I can, trying to take into account all of the matters that are somewhat unusual in this case, I have determined that the minimum period to be served before being eligible for parole in this sentence is one of ten months imprisonment.

46I have made a compensation order.

47Pursuant to s.6AAA of the Sentencing Act, Mr Baker-Kenneison, I indicate to you that had you not pleaded guilty in this matter, I would have sentenced you to a maximum period not of three-and-a-half years but one of four years and seven months, and the minimum period I would have sentenced you to is not one of ten months, but one of three years.

48So in the circumstances, it is quite clear that your plea is to be seen as very valuable, and the impact of you remaining in gaol has also had a large impact insofar as the minimum imposed.

49Do I need to clarify any matters in regard to that sentence with either counsel?  I think it will run concurrently, won't it?

50MR NEWTON:  Your Honour, I appreciate that doesn't need to be stated as per the presumption, but it always helps if ‑ ‑ ‑

51HIS HONOUR:  I mean, I cannot do anything about the minimum period and what happens there, but he has already passed the other minimum.

52MR NEWTON:  Yes.

53HIS HONOUR:  He will have to do ten months from today, essentially.  Well, one would hope.

54MR NEWTON:  One would hope.

55HIS HONOUR:  Unfortunately the way things are going these days, we used to have some certainty about a minimum period, but that perhaps might be appropriate for your instructors to maintain a little bit of pressure in regard to the matter, given the additional period that has been served.

56MR NEWTON:  Yes.  As Your Honour pleases.

57HIS HONOUR:  Mr Prosecutor, any other matters?

58MR TRIANDOS:  No, Your Honour.

59HIS HONOUR:  Yes, well insofar as your future is concerned, Mr Baker-Kenneison, if you hopefully want to live to the sentiments that you have expressed in that letter and you want to enjoy your kids, then you have just go to stop the drugs, all right?

60OFFENDER:  Yep.

61HIS HONOUR:  Finish.

62OFFENDER:  Thank you, Your Honour.

63HIS HONOUR:  If you are in drugs, you will be in trouble.

64OFFENDER:  Yep.

65HIS HONOUR:  All right?  All the best.

66OFFENDER:  Thank you.

67HIS HONOUR:  We will stand down while the next matter is done.

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