Director of Public Prosecutions v Jak Kennedy-Hunt

[2023] VCC 1030

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-22-00661

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAK KENNEDY-HUNT

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JUDGE:	His Honour Judge Rozen
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2023
DATE OF SENTENCE:	22 June 2023
CASE MAY BE CITED AS:	DPP v Jak Kennedy-Hunt
MEDIUM NEUTRAL CITATION:	[2023] VCC 1030

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW  

Catchwords: Sentence – Plea of guilty – Home invasion – Series of burglaries and thefts –– Relevant criminal history - Strong community ties – Totality – Specific deterrence

Legislation Cited: Sentencing Act 1991 (Vic.); Drugs, Poisons and Controlled Substances Act 1981 (Vic.); Crimes Act 1958 (Vic)

Cases Cited: Schaeffer v R  [2021] VSCA 171; Comensoli v R [2020] VSCA 2; Dirbass v R [2018] VSCA 272; DPP v Jak Kennedy-Hunt [2016] VCC 149;

Sentence: Total effective sentence of 5 years and 3 months - Non-parole period of 3 years and 1 month - S 6AAA – Total effective sentence of 7 years with a non-parole period of 4 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Y. Hardjadibrata	Office of Public Prosecutions
For the Accused	Ms F. Fox	Stary Norton Halphen

HIS HONOUR:

1Jak Kennedy-Hunt, today you are to be sentenced for a series of offences that you committed across a three week period in August 2021.

2The principal offending involved three incidents of burglary and theft committed at premises on 8, 22, and 25 August 2021 at Mount Duneed, St Leonard, and Newcomb respectively. The most serious of these incidents, the crime you committed at Newcomb on 8 August, also involved a home invasion. At the time of the offending on 22 and 25 August 2021, you were on bail for other offences.

3Before I proceed to summarise your offending, however, it is necessary to briefly detail the procedural history of your case.

4You were taken into custody on these present matters on 25 August 2021, and your matter proceeded as a contested committal in late April of 2022, at which a number of witnesses were cross-examined.

5Nearly a year later, on 3 March 2023, your matter proceeded before me as a Sentence Indication Hearing. On that day, I indicated that, if you pleaded guilty at the earliest possible opportunity to the charges brought against you, I would impose a sentence of a term of imprisonment of no more than 5 years and 6 months with a non-parole period of 3 years and 2 months.

6Your case was briefly adjourned to allow you to consider the indication which you ultimately accepted.

7On 7 March 2023 you were arraigned and pleaded guilty to the following charges:

(i) Four charges of burglary contrary to s 76 of the Crimes Act 1958. The maximum penalty for this offence is 10 years’ imprisonment;

(ii) Five charges of theft contrary to s 74 of the Crimes Act 1958. The maximum penalty for this offence is also 10 years’ imprisonment;

(iii) One charge of home invasion while a person was present contrary to s 77A of the Crimes Act 1958. This offence carries a maximum penalty of 25 years’ imprisonment; and

(iv) Two charges of possession of a drug of dependence – in this case, methylamphetamine and cocaine respectively – contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence is imprisonment for 1 year.

8You have also pleaded guilty to three charges of committing an indictable offence whilst on bail contrary to s 30B of the Bail Act 1977. This is a related summary offence and it carries a maximum penalty of 3 months’ imprisonment or 30 penalty units.

Summary of Offending

9You are to be sentenced on the basis of the Summary of Prosecution Opening for Plea dated 29 May 2023. Your counsel, Ms Fox, accepted that the prosecution opening accurately summarises your offending. The following summary is drawn from that document.

Charges 1 & 2 – Burglary & Theft – Geelong Pistol Club on 8 August 2021

10At approximately 1 a.m. on the morning of 8 August 2021, you arrived at the Geelong Pistol Club at Mount Duneed. You used an unknown implement to break the padlock securing the door of the equipment building, entered the premises, and began to open and rifle through several filing cabinets (Charge 1 – Burglary). You stole a number of tools from the cabinets: two packets of projectiles, an angle grinder, a drill and drill set, and a circular saw (Charge 2 – Theft). You departed the property with these items at approximately 3 a.m.

Charges 3 & 4 – Home Invasion & Theft – 18 Helms Street, Newcomb on 8 August 2021

11Less than 12 hours later, at approximately 1:30 p.m. on the afternoon of 8 August, you and an unknown co-offender were captured on CCTV arriving at 18 Helms Street, Newcomb. This was the home of Bernadette Ball, which she shared with her two children and her partner Nathan Webster.

12Ms Ball observed you and your co-offender approaching the house on the CCTV. You were both wearing masks. Your co-offender was carrying a small knife; you had a screwdriver. It is not alleged by the Crown that the screwdriver was intended to be used as a weapon nor is it alleged that you were aware at the time of entry that your co-offender had a knife.

13Ms Ball entered the lounge room to confront you. As she entered the lounge, you came towards her, and, when she ran towards the kitchen, your co-offender grabbed her by the arm. You went around into the kitchen through the hallway and blocked the door (Charge 3 – Home Invasion). I note that the Crown do not allege that you are the principal offender in relation to this charge.[1]

[1] Summary of Prosecution Opening for Plea dated 17 May 2023, [12].

14Your co-offender seized Ms Ball by the front of her jumper and pushed her against the kitchen wall. He held the knife to her throat, yelled ‘don’t fuck me around’, and pushed down on her chest and neck with the hand that was holding the knife. You held down Ms Ball’s arm and your co-offender made aggressive demands for drugs and money.

15Nathan Webster, who had been in bed in a nearby room, heard the commotion and came out to the lounge. At about this time, two of Ms Ball’s children, who previously had not been home, walked into the house. At Ms Ball’s direction, Mr Webster attempted to take the children into the bedroom. As he left the lounge, he observed you to be in possession of a screwdriver and your co-offender to be in possession of a box cutter, which he swung at Mr Webster. The children began to scream.

16You began to rifle through the drawers of the bedroom, and your co-offender seized Ms Ball’s handbag from the foot of the bed (Charge 4 – Theft). The two of you then departed the house. As you exited the premises you raised your fist towards Ms Ball and said ‘you fucking rat’.

17The handbag stolen by you and your co-offender contained keys, glasses, a purse containing identification cards, papers with Ms Ball’s sister’s financial details, and a police business card from Detective Senior Constable Mitchell Hardisty.

18Minutes after the home invasion, at 1:52pm, you took a photograph with your phone of the police business card. The next day, you phoned Ms Ball and asked her why she possessed the card (the card was, in fact, given to Ms Ball during an unrelated incident more than six months previously).

Charges 5 & 6 – Burglary and Theft – 18 Helms Street, Newcomb on 22 August 2021

19About two weeks later, just before 11 a.m. on 22 August 2021, you again went to Ms Ball’s home. Once again, you were with an unknown co-offender, but on this occasion neither Ms Ball nor any members of her family were present.

20A witness observed your Holden Colorado utility vehicle pull up nearby 18 Helms Street. They saw the driver get out and pull a black balaclava over his head. Upon observing this suspicious behaviour, the witness phoned 000.

21After pushing in one of the front windows and entering the address (Charge 5 – Burglary), you and your co-offender stole several items from the property, including a police interview disk, a CCTV hard-drive, a watch and a black container (Charge 6 – Theft).

22While you were burgling Ms Ball’s house, police arrived at the address. The CCTV system inside the house recorded your co-offender warning you by name that the police had arrived. You fled through the back of the block.

23Meanwhile, upon arriving at Ms Ball’s address, police spoke to a man named Adam Bonney who was seated in your Holden Colorado utility. After some time, you and another man, Jonnie Camm, approached the vehicle. The police took photographs of you and some of the property that was located inside your vehicle.

Charges 7 & 8 – Burglary & Theft – Seacrest Walk, St Leonards on 25 August 2021

24In the early hours of the morning of 25 August 2021, you committed a further burglary and theft, this time at Mr Brendon Mahony’s home at Seacrest Walk in St Leonards. Mr Mahony was not known to you.

25You accessed the premises by opening the garage roller door by unknown means (Charge 7 – Burglary). At 12.43 a.m. you began to film a video on your phone. The video recording clearly depicts you rifling through cupboards inside the garage at Mr Mahony’s address. You attempt to access a blue sedan and search through the canopy of a blue utility. The recording becomes audio-only approximately two and a half minutes into the recording. When the vision resumes more than ten minutes later, you are still inside Mr Mahony’s garage. The recording concludes at 12.57 a.m.

26Shortly after 9 a.m. that morning, Mr Mahony went out to his garage and observed the roller door was completely open. He noticed that several items were missing: a 1200mm tool box, a 500mm tool box, a chainsaw, a hedge trimmer, two axes, and a stud finder (Charge 8 – Theft). He phoned police to report that a burglary had taken place. Later that day, all of this property was found in the Holden Crewman you were driving; police ultimately returned the items to Mr Mahony.

Charges 9 & 10 – Burglary & Theft – 18 Helms Street, Newcomb on 25 August 2021

27On the same night, Bernadette Ball received information that you believed that she had been informing on you, you were coming to Helms Street, and that she and her children needed to leave the house.

28Ms Ball and Mr Webster left their home with her children and went to stay at a friend’s house. Shortly after 3 a.m., police attended at her friend’s address in response to a welfare check request made in relation to Ms Ball. Ms Ball told police that she was concerned that you were currently at her house because the security camera had been disconnected.

29At approximately 3.30 a.m., police arrived at Ms Ball’s address at 18 Helms Street, Newcomb. They remained in a covert position and observed a Holden Crewman which had reversed up the driveway, and a man with a face covering going in and out of the property and loading items into the vehicle (Charge 9 – Burglary). The police approached and instructed the man to get on the ground, and he complied.

30The man’s face covering was removed, and you were identified and provided your name. You were searched and found to have a machete hidden in the back of your jeans.  Upon inspecting the interior cabin and tray of the Holden Crewman, police identified a number of items belonging to Ms Ball, including a vacuum cleaner, a bicycle, a printer, a note counter, a CCTV system, a pair of shoes, identification cards, three laptop computers, six tablet devices, and a watch (Charge 10 – Theft).

Interview

31You were arrested and conveyed to the Geelong Police Station. In the afternoon of 25 August 2021, investigating police officers conducted a recorded interview with you. You made admissions to the burglary and theft at Ms Ball’s home on Helms Street that you committed earlier that day, but denied having carried out any other offences. You became agitated and stormed out and the interview was unable to be completed.

Charges 11 & 12 – Drug possession – Geelong Police Station on 27 August 2021

32Two days later, on 27 August 2021, you were locked in a holding cell at the Geelong Police Station so that you could use the toilet. You were observed on CCTV to be attempting to position something in your underwear or inside your body. You were searched by custody officers and two zip lock bags were recovered, one containing powder and the other contained a liquid.

33The liquid substance weighed 0.76 grams and was determined to be methylamphetamine (Charge 11 – Possession of a drug of dependence); the powder substance weighed 11 grams and was determined to be cocaine (Charge 12 – Possession of a drug of dependence).

Summary Offences

34You were on bail at the time that you committed the thefts and burglaries at Helms Street on 22 August 2021, and St Leonards and Helms Street on 25 August 2021. You have also pleaded guilty to the three related summary offences of committing an indictable offence whilst on bail for these three separate incidents.

Victim Impact

35At the plea hearing, three Victim Impact Statements were filed by the prosecution and read by the prosecutor in open court. The statements were made by Bernadette Ball, Nathan Webster, and Brendan Mahoney.  Ms Ball and Mr Webster were the victims of the home invasion and theft on 8 August and subsequent burglaries and thefts on 22 and 25 August; Mr Mahoney was the victim of the offending that you committed at St Leonards on 25 August 2021.

36In her statement, Ms Ball describes the devastating impact that your offending – in particular, the home invasion – has had upon her and her children. She states that she now lives in constant fear and has required ongoing counselling, and that her children no longer feel safe in their own home.

37Ms Ball’s partner, Mr Webster, similarly describes the profound and enduring negative impact of your offending. He has experienced trouble sleeping and an ongoing fear of retaliation. Mr Webster states that he has constant flashbacks to the home invasion and has had to install more security around his house to feel safe.

38Finally, Mr Mahoney, whose home you burgled on 25 August 2021, has also taken the step of installing greater security measures – including extra locks, ring security lights, and several CCTV cameras – since you offended against him.

39I have considered and taken into account each of those victim impact statements in determining the appropriate sentence noting that the impact of the offending on Ms Ball and her family was caused by you and your co-offender jointly.

Objective Seriousness

40Yours is clearly serious offending especially the home invasion. As the Court of Appeal has recognised, home invasions are ‘a particularly nasty form of criminal conduct’.[2] You invaded the security of Ms Ball’s home and exposed her, Mr Webster and her two teenaged children to a frightening violent incident. The victim impact statements speak eloquently of the terrible impact of your conduct.

[2] Schaeffer v R [2021] VSCA 171 at [65].

41However, this is far from the worst example of this offence seen in this court. Your intent was to steal and not assault.[3] You were unarmed and unaware at the time the offence was committed that your co-offender was armed. You were not the principal offender. It was your co-offender whose conduct was especially aggressive and violent.

[3] Comensoli v R [2020] VSCA 2 at [20]-[21]; Dirbass v R [2018] VSCA 272 at [62]-[64].

42It is aggravating that you returned to Ms Ball’s address to commit further offending. It was fortunate that on the last occasion she and her children were not home as they had fled in the middle of the night to the home of a friend.

43The thefts involved relatively high value items although I note that some of the property has been restored to its rightful owners. Further, it is accepted by the prosecution that ‘the value of the thefts … would have fallen well within the jurisdiction of the Magistrates’ Court of $100,000’.[4] The maximum sentence that could have been imposed in such a case by the Magistrates’ Court would have been 2 years’ imprisonment.[5]

[4] Prosecution Outline of Submissions for Sentence Indication dated 1 March 2023 at [4].

[5] Sentencing Act 1991 (Vic.), s 113.

44In assessing the seriousness of your offending, I have taken into account that the offending can properly be characterised as one lengthy criminal spree over the 3 week period.

45It is also aggravating that charges 5-10 were committed while you were on bail for other offending.

46The drug possession charges are low level examples of the s 73 offence given the quantities of the drugs and that they were for your personal use.

Personal Circumstances

47I now turn to discuss your personal circumstances.

48You were born in 1988 and are now 34 years old. You have one twin brother, Bart, who has been present throughout the court proceedings to support you, and I note that the Court received a supportive character reference from Bart at the plea hearing.

49While you have reported to assessing psychologists that your early years were stable and relatively positive, at about the age of 10 or 11 your family unit experienced a significant disruption when you learnt that the man you thought of as your father was actually your step father, he and your mother were separating, and that your mother was now living with a man who you had known as Uncle John, who was in fact your biological father.

50You attended St Joseph’s College in Geelong and, while you ultimately completed Year 12, it appears that your sole aim throughout these years was pursuing a career as a professional footballer.

51However, a series of injuries hampered your professional prospects and after failing to be drafted, you moved to Adelaide after being offered a position with the South Australian National Football League. Unfortunately, you were afflicted by further injuries, felt socially isolated, and began to use cocaine, cannabis and amphetamines. This ultimately led to your first period of incarceration in South Australia for trafficking and cultivating cannabis.[6]

[6] Discussed by Judge Gaynor in DPP v Jak Kennedy-Hunt [2016] VCC 149, [20].

52When you returned to Victoria, your life spiralled out of control into a pattern of drug use and crime. As a result of your methamphetamine use, your relationships with your family deteriorated, ultimately culminating in your parents and brother taking out intervention orders against you.

53In the time since, you have been dealt with twice in the County Court for serious offending.

54In 2013, her Honour Judge Campton sentenced you to a term of imprisonment of four years and three months with a minimum term of two years and three months for the principal offences of trafficking methylamphetamine and possessing a firearm while being a prohibited person.[7]

[7] [2013] VCC 1306.

55In 2016, her Honour Judge Gaynor sentenced you to a term of three months' imprisonment in combination with a lengthy Community Correction Order for one charge of recklessly causing serious injury and one charge of affray.[8]

[8] [2016] VCC 149.

56Following your release from prison in 2017, your life was stable for several years. Although you were unemployed at the time of your arrest for the offending presently before the court, you have demonstrated a strong work history in recent years, having worked in various construction jobs in concreting, labouring, and with your brother Bart in the crane industry.

57At the plea hearing, John McNamara, the founder and executive officer of Yambuk Labour Solutions Team, gave sworn evidence that he will have a labouring role available for you when you are released from custody. Your counsel Ms Fox submitted that this will be an important protective factor upon your release from custody which I accept.

58At the time of your arrest, you reported that you were using cocaine daily – sometimes up to 10 grams per day – as a form of self-medication. You were also using ice. Ms Fox submitted that you have remained abstinent in custody, although I have received no evidence in support of this.

Matters in Mitigation

59I now turn to discuss matters in mitigation.

60First, your plea of guilty. By pleading guilty you have saved considerable court resources and time, and have spared the victims of your offending the burden of giving evidence at trial. However, your plea was not an early one. You contested these charges at committal, and a number of witnesses were called and cross-examined. Nevertheless, your plea is still of significant utilitarian value, and particularly so in the context of the ongoing disruption to the Courts caused by the pandemic.

61In light of the backlog in the criminal justice system, the courts must ‘encourage those accused who are guilty to so plead’, and this encouragement must come from a significant and perceptible amelioration of sentence.[9] I have accordingly moderated the sentence that I impose on you today.

[9] Worboyes v The Queen [2021] VSCA 269, [35].

62Normally, a plea of guilty may indicate that an offender is remorseful and has developed insight into their behaviour. Remorse of this kind enhances prospects of rehabilitation and reduces the need for specific deterrence.[10] In your letter to the Court dated 10 March 2023 you demonstrate that you have gained a considerable degree of insight into the personal factors that underlay your offending behaviour. However, I note that you make no mention in your letter of the victims of your offending.

[10] Barbaro v The Queen [2012] VSCA 288, [39].

63In a psychological assessment report by Dr Kyla Jonkers, which was tendered on your behalf, Dr Jonkers further explores the issue of your remorse and insight into your offending. She states:

‘Mr Kennedy-Hunt presents with a high degree of anger, bitterness and resentment. Ultimately, he can recognise the responsibility he has for his actions and holds himself to blame, however this level of acceptance of his own failings and inadequacies is fleeting as it causes too much distress for Mr Kennedy-Hunt to tolerate. Consequently, he projects blame and hostility onto others, particularly his close family members and maintains the internal narrative that they have let him down and he has been a victim.’[11]

[11] Psychological Report of Dr Kyla Jonkers dated 19 January 2023, [28].

64On the basis of this assessment and the material before me, I do not consider that you have properly understood the impact that your offending has had on others. Specifically, you have failed to display any remorse for the harm that your offending has inflicted upon Ms Ball’s children, who are, in many respects, the principal victims of your home invasion. This accordingly bears upon my assessment of your prospects for rehabilitation.

65Another relevant matter is your experience of custody. You have been remanded for these matters since August 2021, and you have spent much of this time with limited access to prison programs and have experienced considerable time in ‘separation’. I accept that your time in custody has been particularly onerous and I have taken this into account in mitigation of sentence.

Mental Health

66In her written submissions for the Sentence Indication, Ms Fox indicated that she places no reliance on the principles outlined in the case of Verdins.[12] In other words, she submitted that the impairment of your mental functioning should not operate as a mitigating factor in sentencing. However, your mental health still remains a highly relevant consideration.

[12] Verdins v R (2007) 16 VR 269

67In the months preceding this offending, you were taken to the Geelong Hospital for mental health assessments on four separate occasions.

68In December of last year, you were assessed by the psychologist Dr Kyla Jonkers. Dr Jonkers opines that you present ‘with symptoms of Anxiety in the Severe Range, and Post-Traumatic Stress Disorder, with the severity of symptoms falling within the Severe Range.'[13] You also reported to Dr Jonkers that you have received a diagnosis of Attention Deficit-Hyperactivity Disorder.[14]

[13] Psychological Report of Dr Kyla Jonkers dated 19 January 2023, [24].

[14] Ibid, [27].

Totality

69Finally, your counsel placed reliance on the principle of totality as a mitigating factor in your case. Ms Fox submitted that, because your offending occurred over a relatively confined period of time and the thefts and burglaries fall at the lower end of the range of seriousness, you should not face a disproportionately long sentence by virtue of the number of charges to which you have pleaded guilty.[15]

[15] Defence Submissions for Sentence Indication dated 27 February 2023, [32].

70In the words of their Honours Maxwell P and Niall JA in the case of Berry v The Queen,[16] the principle of totality requires that a sentencing Judge ‘stand back and assess not just the individual sentences but the aggregate sentence and consider whether the aggregate is proportionate to the degree of criminality involved and is “just and appropriate” and “not excessive”’.[17] 

[16] [2019] VSCA 291.

[17] Ibid, [22].

71Ms Fox also submitted that because you were sentenced to a term of imprisonment of 90 days for unrelated offending on 15 February 2022, you have ‘lost the benefit of concurrency in relation to that sentence.’[18] In other words, this 90 day sentence has, in effect, been served wholly cumulatively on the offending presently before the Court. I have taken this into consideration in determining the appropriate head sentence and non-parole period.

[18] Defence Submissions for Plea dated 15 May 2023, [6].

Prospects for Rehabilitation

72I turn now to consider your prospects for rehabilitation.

73On the one hand, you have an extensive criminal history of offending between 2006 and 2016 for offences involving drugs, weapons, and crimes of violence. Sadly, it is clear that the prior sentences imposed upon you by this court have failed to specifically deter you from further offending, and this necessarily reflects upon your prospects of rehabilitation.

74On the other hand, however, there are some promising signs. In a letter to the Court dated 10 March 2023, you state that you have taken responsibility for your actions.

75In another letter dated 17 April 2023, Dr Martinovic, an Associate Professor in Criminology and Justice at RMIT University, details your ‘outstanding dedication, participation and academic achievement’ in the Inside Out Prison Exchange Program. Dr Martinovic, who runs this program at Ravenhall Correctional Centre where you have been incarcerated, states in her letter that you show ‘a lot of capacity for considering how your life events fit into a bigger picture’, and that you have the potential to ‘be an important advocate for men in prison’.  

76I also recognise that you have displayed some strong pro-social behaviours in the past. In particular, the Court has received evidence of your involvement in ‘Fight MND’ charity work in support of the organisation fighting motor neurone disease. This is very much to your credit.

77Furthermore, I accept that you have a supportive family network and employment prospects in place to assist you in reintegrating into the community. In this regard, I acknowledge particularly your twin brother, Bart, who is determined to support you upon your release from prison.

78Considering these various factors, Ms Fox submitted that I should moderate the sentence to reflect the active steps you have taken in custody to address your criminogenic behaviours and mental health,[19] and your desire and willingness to engage in employment and positively re-engage in society upon your release from prison.[20]

[19] Defence Submissions for Plea dated 15 May 2023, [14].

[20] Defence Submissions for Sentence Indication dated 27 February 2023, [47].

79I hesitate to fully accept this submission.

80When her Honour Judge Gaynor sentenced you in February of 2016, more than seven years ago, she stated the following:

‘I am satisfied that you have made great progress since 2012. You have freed yourself from your drug addiction and you have taken every educational opportunity open to you, demonstrating a capacity also to be employed and to work hard.  You have regained the support and love of your family … I am prepared to find that you do have very good prospects of rehabilitation and that specific deterrence is not a principle requiring overdue weight in the sentencing exercise before me.’[21] 

[21] DPP v Jak Kennedy-Hunt [2016] VCC 149, [44-45].

81The Court finds itself in a similar position today. You come again before the Court charged with serious offending, and once again the Court is asked to moderate your sentence on the basis that you have found prison to be a salutary experience, you have taken positive steps towards your rehabilitation, and that you will have a solid social network in place to support you upon your release from custody.

82In my view - and indeed in the view of Dr Jonkers - unless you can properly manage your mental health when you are released from prison, your realistic prospects for rehabilitation are low.[22] In her report, Dr Jonkers states as follows:

‘In the absence of effective treatment, Mr Kennedy-Hunt will likely continue to use exercise as his primary source of managing his symptoms in prison and remain vulnerable to stressors, which may result in a fluctuating or chronic escalation of his symptoms over time. While his behaviour can be largely contained within custody, re-entering the community without his mental health properly managed increases the likelihood of Mr Kennedy-Hunt once again seeking anti-social means by which to manage this.’[23]

[22] Psychological Report of Dr Kyla Jonkers dated 19 January 2023, [30].

[23] Ibid, [30].

Sentencing Principles and Consideration

83The relevant sentencing considerations are community protection, denunciation as well as general and specific deterrence. I must also strive so far as I can to promote your rehabilitation.

84Home invasion, which attracts a maximum sentence of 25 years’ imprisonment, is a ‘Category 2 offence’ under the Sentencing Act 1991. As a result, a combination sentence of imprisonment and a CCO is not available unless ‘exceptional circumstances’ are present.[24] Your counsel did not seek to convince the court that this is the case.

[24] S 5(2H).

85As Charges 5-10 were committed whilst you were on bail, the provisions of s.16(1A)(e) and s.16(3C) of the Sentencing Act 1991 apply. This means that the presumption of concurrency as between the different sentences of imprisonment in s 16(1) is inapplicable. It is replaced by a presumption of cumulation unless the court otherwise directs.

86In applying the principle of totality, I have taken into account the 90 day sentence you received and which I referred to earlier.

Orders

87Taking all of the above into account and noting that the court cannot impose a more onerous sentence than the indication you have accepted, I make the following orders:

(i)    On Charge 1, burglary, I sentence you to 18 months’ imprisonment.

(ii)   On Charge 2, theft, I sentence you to 12 months’ imprisonment.;

(iii)   On Charge 3, home invasion, I sentence you to 3 years and 9 months’ imprisonment.;

(iv)     On Charge 4, burglary, I sentence you to 6 months’ imprisonment.;

(v)   On Charge 5, burglary, I sentence you to 18 months’ imprisonment.;

(vi)     On Charge 6, theft, I sentence you to 4 months’ imprisonment.;

(vii)    On Charge 7, burglary, I sentence you to 6 months’ imprisonment.;

(viii)   On Charge 8, theft, I sentence you to 12 months’ imprisonment.;

(ix)     On Charge 9, burglary, I sentence you to 2 years’ imprisonment.;

(x)   On Charge 10, theft, I sentence you to 12 months’ imprisonment.;

(xi)     On Charge 11, possession of methylamphetamine, I sentence you to 1 month of imprisonment.; and

(xii)    On Charge 12, possession of cocaine, I sentence you to 1 month of imprisonment.

88On the related summary offences you are convicted and discharged noting that I have taken into account that you were on bail in fixing the above sentences for charges 5-10. A further penalty would be double punishment.

89The sentence on Charge 3, home invasion, is the base sentence.

90Taking into account the principle of totality and noting the effect of s 16(1A)(e) and (3C) of the Sentencing Act 1991, I order that:

(i)    2 months of the sentence on Charge 1;

(ii)   2 months of the sentence on Charge 2;

(iii)   1 month of the sentence on Charge 4;

(iv)     2 months of the sentence on Charge 5;

(v)   1 month of the sentence on Charge 6;

(vi)     2 months of the sentence on Charge 7;

(vii)    3 months of the sentence on Charge 8;

(viii)   3 months of the sentence on Charge 9; and

(ix)     2 months of the sentence on Charge 10

be served cumulatively upon each other and cumulatively upon the sentence imposed on Charge 3.

91The sentences on charges 11 and 12 are to be served wholly concurrently.

92The total effective sentence is therefore 5 years and 3 months’ imprisonment.

93The period before which you will be eligible for parole is 3 years and 1 month.

94Pursuant to s 18(4) of the Sentencing Act 1991, I declare that the period of 576 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the Court’s records.

95Pursuant to s 6AAA of the Sentencing Act 1991, had you pleaded not guilty and been found guilty after a trial, I would have imposed a sentence of 7 years’ imprisonment and a non-parole period of 4 years.

96Finally, I make the forfeiture and disposal orders sought by the prosecution, noting that they are unopposed.