Director of Public Prosecutions v Jennings

[2017] VCC 1273

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR 17-00501

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYLE JENNINGS

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	7 September 2017
CASE MAY BE CITED AS:	DPP v Jennings
MEDIUM NEUTRAL CITATION:	[2017] VCC 1273

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty
For the Accused	Mr C. Mylonas

HER HONOUR:

1Kyle James Jennings, you have pleaded guilty before me to one charge of theft. You have also pleaded guilty to a breach of community corrections order, which has been uplifted to be dealt with in this court, pursuant to s.145 of the Criminal Procedure Act.

2The facts underlying your offending I will summarise fairly briefly, and I annex as an exhibit the summary of prosecution opening.  You got up early on
24 August 2016 in order to visit your girlfriend's house, because you had, on
23 August 2016, been placed on a community corrections order, and you wanted her permission to use her address as your contact address for the purposes of the community corrections order.

3On the way, you were picked up by two associates, Lachlan Mitchell and Keiarhn Carter, who were then driving, unbeknownst to you, a stolen car.  You got into the car, as I understand it, believing you were to be given a lift, and were told that there was going to be a bit of a detour on the way to the victim in this matter, Hudson Bell's caravan in the Warrnambool Showgrounds, on the basis that he owed Mr Mitchell $50.

4The three of you entered the caravan, whereupon after Mitchell had rocked the caravan and then entered it and produced a sawn-off shotgun, and demanded that
Mr Bell hand over money.  You later told police in a record of interview you were dumbfounded at the subsequent events, however very foolishly remained at those premises while an armed robbery was carried out upon Mr Bell.  It is conceded by the prosecution you had no knowledge of what was to transpire, and essentially you have been charged with theft, as I have said, on the basis that you did not remove yourself from the premises.  At law, you did not have the requisite intent to be found complicit in the use of the weapon and violence that then followed in relation to Mr Bell.

5You then were dropped off and attended upon what was to be your induction session with Corrections when you were apprehended by police, taken away, and then spent the next 156 days in gaol, before being placed on bail on
27 January 2017, with a condition that you reside at Wulgunggo Ngalu Men's Learning Centre.  To your credit, this you promptly did, travelling down there as soon as you were released. 

6You thereafter continued on the community corrections order.  I have received reports, both from Wulgunggo Ngalu, and heard sworn testimony from Ms Sarah McMahon, who is your case manager on the community corrections order.  Both reports were extremely positive.  I note that the progress report from Wulgunggo Ngalu indicates that you participated in every aspect of what was essentially offered there.  You were subjected to random breath testing and urine analysis on a thrice-weekly basis.  You undertook a vast number of courses, including a Koori drug and alcohol counselling course.  You engaged in a cultural education program.  You undertook unpaid community work, attended on a weekly men's circle, attended on a gardening project at Yarram Secondary College, you engaged in football and netball teams, you undertook a life coaching program, and men's forum program, a positive psychology program, a Koori youth forum, induction to industry white card federation, it goes on.  There is a list of some 20 programs that you have undertaken in your time there since January of this year, which is very much to your credit.

7You were described as participating and engaging well, of living respectfully in a communal living situation.  You participate in cleaning and cooking on the roster system.  You were described as well-respected by staff and fellow participants.  Really, you have behaved in an exemplary way. 

8As a result, I am satisfied that your prospects of rehabilitation are extremely positive, and that aspects of sentencing such as community protection and specific deterrence have little part to play in the sentencing exercise before the court.

9Briefly, insofar as your background is concerned, you are a 27-year-old Gunja Mara man, through your mother.  Your parents separated when you were young, there have been drug and alcohol problems both through your mother and your father, who separated when you were young.  There has been Department of Human Services intervention, and unsurprisingly in the environment you were living with, drugs and alcohol entered your life at a very early stage, when you were only about ten.

10You have some prior criminal history, but given your involvement in substance abuse from such an early age, it is less than would otherwise be expected, and less serious than would otherwise be expected.

11You left school in Year 9, but have a reasonable work history.  You undertook a construction course at Warrnambool TAFE, and then you completed a bricklaying apprenticeship and worked for an employer, Xavier McInerney, who wrote a very positive report which was tendered on the plea, attesting to your qualities as a reliable and efficient, and hardworking, employee who he would be happy to re-employ, were you to seek work with him again. 

12You have one child through your relationship with Jamie-Lee Leslie, from whom you are now separated.  You have a 20-month-old son.  You are keen to resume a role in his life as his father.  Your counsel informed me that in your time at Wulgunggo Ngalu you have developed a desire to engage in community service work, primarily as I understand it, involved in giving back to the indigenous community of which are you are part. 

13In my view, the fact that you offended so early into the community corrections order that you received was more by accident than design.  In my view, it was unfortunate that you spent so long in custody, and that the time you spent there would be an inordinate response to the offending you ultimately engaged in.  As I have said, you have certainly demonstrated your bona fides in the way you have behaved since.

14Ms McMahon, who kindly attended court, gave evidence that you have already been assessed as suitable for placement on a further community corrections order.  It is not urged that I deal with you in any other way, and I propose placing you on this order.

15In relation to the breach, I confirm the order, but make no further order.  In relation to the charge of theft, you are placed on a community corrections order for a period of six months, with special conditions that you be supervised, and that you undertake programs designed to prevent reoffending.  Before I can place you on this order, you must consent to it.  Can you stand up please, sir?  I do need to outline the core conditions as well as the special conditions I have just outlined.

16They are that you must report to the community corrections office within two working days of the making of this order.  That is by Monday of next week.  Once on this order, you must not commit any offence.  You may not leave Victoria without the permission of the Community Corrections office, you must not attend upon the Community Corrections office under the influence of drugs or alcohol.  You must report any change of address or occupation to the Community Corrections office within 48 hours of that change.  You must receive - you must attend upon and receive visits from the Community Corrections office, and you must obey all lawful directions of the Community Corrections office. 

17Ms McMahon, do I need to make - do I make a condition about Wulgunggo Ngalu or not?

18MS McMAHON:  No Your Honour, it is a voluntary program, and if he chooses to return to the community, we will continue to support him.

19HER HONOUR:  Thank you very much.  I understand it is your intention to return to Wulgunggo Ngalu and to remain there until you have completed your community corrections order, which in my view is a very good idea.  You have certainly acquitted yourself very well, but it's still only been for a period of months, and the extra time you spend there can only solidify and shore up the gains that you have made, and prepare you for the day when you're no longer on an order, and have to take charge of your own life. 

20So that is my sentence.  Those are my sentencing remarks.  Thank you
Mr Jennings. 

21MR MYLONAS:  As the court pleases.

22HER HONOUR:  Because I have placed you on an order, I do not have to make a declaration pursuant to s.6AAA.

23MR O'DOHERTY:  No, that is correct.

24HER HONOUR:  Thank you, have a seat Mr Jennings.  All right, we will get you to sign this, thank you very much.  Thank you, all right Mr Jennings, good luck with it.  Keep up the good work, and hopefully you and I will never see each other again, all right?  Thank you very much, you can come out of the dock.

25MR MYLONAS:  Thank you Your Honour.

26HER HONOUR:  All right, I thank counsel for their assistance in this matter. 

27(At this stage the court proceeded with another matter.)

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