Director of Public Prosecutions v K,S
[2018] VCC 1722
•22 October 2018
Y
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 18-00600
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEBASTIAN JOHN KENNETT |
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JUDGE: | HIS HHONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 22 October 2018 | |
CASE MAY BE CITED AS: | DPP v K,S | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1722 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms F. Dalziel | Richard Lewis (OPP) |
| For the Accused | Mr R. Backwell | Simon English (Simon English Lawyers) |
HIS HONOUR:
1 Sebastian John Kennett, you have pleaded guilty to an indictment which contained four charges related to an event on 9 October 2017. The circumstances of the offending were described in a document tendered by the prosecution. For purposes of this sentence I will summarise the events of that day.
2 On Monday, 9 October 2017, at around 11:00 pm, Lynda Hansen was killed when her car was struck by a stolen car driven by you at high speed along Warrigal Road, Oakleigh. Ms Hansen was a registered nurse and was 53 at the time of her death. She was driving home from dinner with a friend when her vehicle was hit. She suffered critical chest injuries and died at the scene.
3 You had been released on 18 September 2017 from Malmsbury Youth Detention Centre on youth parole. You had been serving a sentence in respect of multiple dishonesty offences, driving whilst unlicensed and disqualified. At the time that the sentence was imposed in June of 2017, the court ordered that you be disqualified from obtaining a drivers licence for 12 months so that at the time of the collision you were both unlicensed and disqualified from obtaining a drivers licence.
4 Sometime between 28 September 2017 and 8 October 2017, a 2015 white Lexus SUV was stolen from a property in Elwood. This vehicle was detected by traffic cameras in the eastern suburbs between 3 October and 9 October 2017, the foundation for Charge 1.
5 On the day before the collision you were observed driving the SUV at speed and erratically. At around 11.30 pm on 8 October a man saw the SUV pull into a BP Service Station in Murrumbeena. At the BP Service Station on North Road you got out of the driver's door and appeared to be drug affected, you walked to and from the vehicle and as you drove out of the service station you came close to side swiping the vehicle against the building. On 9 October you were seen by other road users driving at high speed down Warrigal Road, Chadstone. Witnesses estimated the speed at which the SUV was travelling at around 100 kph. One described the buffeting of his car as you drove past. You were seen to run a red light at the intersection and then come to a halt at another red light. One of these witnesses was so concerned that he called 000. Not long after this at 9.45 pm another driver saw you on Dandenong Road driving west. While waiting at the red light at the intersection of Dandenong and Belgrave Roads, this witness saw your SUV pulled into the bus lane to the left him, come to a stop and then whilst the lights were still red, suddenly accelerate through the intersection. The witness saw the SUV take off at speed and then again saw it stopped at another red light. That was the subject of Summary Charge 9.
6 At around 11:00 pm Ms Hansen was driving south on Warrigal Road preparing to turn right at Barkly Street. This road is marked as having a speed limit of 60 kph. The right turn into Barkly Street is not controlled by lights, however there is a road marking with a forward arrow and a right turn arrow. Four point one seconds before her vehicle was hit, she had slowed to 50 kph and continued to slow so that the second before impact she was travelling at 30 kph. At the time of impact she was travelling at 26 kph. This data comes from the airbag control module in the car. The car was struck on the passenger side by the Lexus SUV, while her car was in the centre lane of the north bound traffic. In those 4.1 seconds her vehicle had travelled 39 metres, slowing down in effect to perform the turn.
7 You were driving the Lexus north on Warrigal Road. You passed several vehicles travelling at speed estimated by some in excess of 100 kph. The airbag control module in the Lexus recorded that at 4.8 seconds before impact, you were driving at 155 kph, 3.35 seconds before impact you were travelling at 161 kph.
8 Your vehicle struck the Yaris driven by Ms Hansen on the passenger side, pushed it back in the direction it had been coming, rotating and coming to a halt on the south bound footpath between a fence and a tree. As it was pushed back from the collision site, the car collided with a small tree on the nature strip and a fence. Your vehicle continued forward leaving scrapes and scuffs along the road, it side swiped a tree in the median strip and rotated anticlockwise before coming to rest facing south on the north bound footpath and road.
9 A resident of a nearby house heard the loud noise of the collision and ran outside. He went to the Lexus and as he did so you got out of the driver's door, unsteady on your feet. The witness asked you if you were okay and if you needed help. You said, "Yeah I'm okay, just give me a couple of minutes to get back on my feet". The witness turned away to look at the Yaris and then heard the noise of you running away. The witness described you as running away as fast as you could along Warrigal Road and down a laneway off that road. Emergency services were called by people who had seen the collision. Ms Hansen died at the scene despite the efforts of ambulance paramedics. She had suffered multiple broken bones and injuries.
10 The airbag control module on the Lexus recorded that at 4.8 seconds before impact your vehicle was travelling at 155 kph with the accelerator fully depressed. The speed of the vehicle increased so that at 2.8 seconds before impact it was moving at 161 kph and in those two seconds your car travelled more than 88 metres.
11 At 2.8 seconds before impact you had ceased to accelerate and the next reading indicates that by the time you had depressed the brake, you were now travelling at 158 kph. If the SUV had been travelling at the correct speed of 60 kph, it would have travelled only 47.5 metres in that 2.8 second period, so that if you had been travelling at or below the speed limit, the collision would not have occurred. At the time of the collision it was dark, the road was dry and the weather was clear.
12 You were arrested only on 12 October after a publicised search for you by Victoria Police. Calls made by you prior and following your arrest indicate that you had been aware police had identified you as the driver of the SUV and that they were searching for you.
13 Upon your arrest you were examined by a forensic medical officer and then taken to a hospital for a review. You told a doctor at the hospital that you did not remember the details of the collision but you were able to get yourself out and find a place to rest. You had mild insignificant soft tissue injuries to your shoulder and chest.
14 When you were interviewed by police you made "no comment" answers as was your right. You were requested to provide the PIN to your mobile phone, and despite being warned of the potential penalty for failing to do so, you refused to provide that information.
15 Culpable driving causing death carries a 20 year maximum imprisonment, theft 10 years, failure to render assistance after a motor vehicle accident where the accused knows or ought reasonably to have known that the accident had occurred and had resulted in a person being killed, carries 10 years' maximum imprisonment. And failure to comply with a court order and provide assistance, 5 years' imprisonment. Driving whilst disqualified and having a prior conviction for this offence, for which you do, carries 2 years' imprisonment. Entering an intersection against a red light carries 10 penalty units.
16 Victim impact statements were tendered by the family members of Ms Hansen. Each were powerful, sad and moving testimonials to the profound impact her death has had upon her family and friends. She was a generous, kind, dedicated, talented beloved daughter and sister. A woman who was an experienced cardiac nurse, probably enhanced the life of many, and whose contribution to the community was substantial.
17 Her mother Celia Elliott read a victim impact statement to the court. She endeavoured to describe the aftermath to the death of Lynda, her eldest daughter. She endeavoured to describe unbearable pain and sorrow, her disbelief and grief, the unthinkable and incomprehensible loss of a beloved daughter. She described her questions, her lack of sleep, her striving to accept the loss and the comforting role of her faith. Hers was a very dignified and civil cry from the heart. Her health has suffered, she is restless, lacking in motivation, has lost social contact and is uncertain about the future though she is supported by love and support and her strong faith. I take her statement into account.
18 Ms Hansen's older sister Corinne Sommers wrote of her and how much she misses her sister, a woman who was generous with her knowledge and kindness, who looked after her mother and provided each with company and companionship. The funeral, the sale of her unit, the searing grief of her loss have had a deep effect on her. I take her statement into account.
19 David Sommers also wrote a victim impact statement. He feels guilt for not having ensured Ms Hansen's safety and protection, the missed opportunities of life remain as lost chances which engender anger and sadness. He speaks of her family's life being so much poorer because of the loss. He has been prescribed sleeping tablets and often loses sleep, and I take his statement into account.
20 Bradley Sommers wrote of the tragic loss of Aunt Lynda as having affected the whole family and he has struggled with his emotions and questions of his children. The brief memory of his last meeting with Ms Hansen, which like all memories are clouded by anger and sadness. He wrote of a caring, unselfish and deeply spiritual woman who is greatly missed.
21 Lisa James wrote movingly of her friendship with Lynda Hansen and of the pleasure of sharing her sincere care and joyful companionship and company with her daughter who was Lynda's godmother and playing music together. Her friend's death has left her bereft of a great friend and she reflects on the tragic interruption of a life which was moving towards a new relationship and a new job and future.
22 Liam Somers also wrote of Aunt Lynda's life and her loss as having a significant impact and effect on him, his relationships and his health. She inspired him to become a teacher and he reflects on the impact on his family and children. I take all of these statements into account. It was notable that these expressions of sorrow elicit utterly no response in your demeanour in court. Not even the most cursory acknowledgement except a disinterested annoyance at the time devoted to them.
23 I take your plea into account. It was entered at a reasonably early stage at the second committal mention and I accept that it facilitates the course of justice and has utilitarian value. It will attract a discount upon your sentence by operation of law.
24 The plea in your matter proceeded with brief references to reports which were tendered, and to which I will refer extensively in a moment, and to the decision of Fuller v The Queen [2013] VSCA 186 which relates to your sentence by the Supreme Court of Appeal from a sentence of this court on a charge of culpable driving. Other brief points were made and I shall refer to them in a moment, but it appeared conceded that deterrence, denunciation and community protection were now primary objectives which the sentence had to meet. Your youth was mentioned briefly and I was exhorted to not crush you by this sentence.
25 In order to set out adequately your background and personal circumstances it is important in my view to fully summarise the matters by the Court of Appeal decision in 2013 and unfortunately that will take some time. This will take a little time but those circumstances of you having a prior for culpable driving is exceptional and frankly difficult and makes a full exposition of your circumstances important. I do so primarily to fulfil my obligation to take those personal circumstances into account including your very relevant priors.
26 Fuller
was handed down on 24 July 2013. It is a judgment of Ashley and Hansen JJA. Your name was given a pseudonym for the purpose of the sentence. At that time you were 14 years and 10 months of age. The circumstances were that on 30 October 2011 you and others stole a Toyota Land Cruiser. The next day you left with your girlfriend in the stolen car and you met some friends. You drove round showing off by performing various manoeuvres. Another young person got into the vehicle. The group bought and drank alcohol. This included you, who was driving. Another passenger was picked up in the early evening and all up seven people in the car from ages
14 to 17 years old were present. At 8:00pm you stole petrol and then drove to a party in Brighton. Some people from the car went to the party for a time and you set off again driving. Later at around 10:00 pm you engaged in fishtailing. You lost control of the car and you rolled it a number of times and two occupants were thrown out. A 16 year old boy was killed and a 16 year old girl suffered serious injuries including a fractured pelvis and spine. You suffered a severe head injury which left you with an acquired brain injury which at that time appeared permanent. You were unlicensed and your blood alcohol concentration was .08.
27 The court noted, paragraph 24:
"The appellant's driving exhibited the hallmarks of an immature irresponsible thrill seeking young man, somewhat alcohol affected, showing off to a group of his peers. The entirety of the circumstances were a recipe for the disaster which occurred."
28 The legal framework of that sentence is notable. You were 14 years and 10 months at the time of the offending within the meaning of the Children's Act. The other charges were within the jurisdiction of the Children's Court. Only culpable driving was not. The Children's Court has the power to see jurisdiction if the child objects to that court hearing an indictable matter, and you did object in that instance. You were committed to the County Court. The court referred to the provisions of s.362 of the Children's Act which preclude general deterrence as a sentencing consideration in a proceeding to which the section applied but this was not the basis upon which the court decided the appeal given that culpable driving was not strictly speaking a charge to which the preclusion applied. The court did not resolve the question of the sections application but proceeded rather on another basis, that is your age, your level of intellectual and psychological disability, the injuries sustained.
29 The court stated it could not regard general deterrence a factor of any significance in the sentencing synthesis and the culpable driving could not be determined in the Children's Court so the purposes of sentence were one or more of punishment, general and specific deterrence, facilitation of rehabilitation, denunciation and protection of the community.
30 The court also had regard to the Sentencing Act s.5(2) matters, that is the maximum penalty, current sentencing practices, the nature and gravity of the offence, the offence's culpability, the degree of responsibility, the plea of guilty, the time of the plea, previous character and aggravating and mitigating factors. The court stated that current sentencing practices was almost without meaning in your case. The appearance of an offender under 15 years of age the court said, was unprecedented in recent years so that very little guidance could be got from sentencing statistics.
31 The court referred to facilitation of rehabilitation at paragraph 38 and that in some circumstances where the gravity of the offending demand that that consideration be subordinated to other considerations, quoting Redlich J in Azzopardi.
32 Injuries which you sustained were considered as having inflicted extra curial punishment because the acquired brain injury compounded your intellectual and psychological problems of which you suffered. The court noted that the deficits under which you laboured appeared to have reduced your inhibition or awareness of the significance of reoffending, rendering your prospects of rehabilitation at that time "more problematic", at paragraph 41.
33 You were born in 1996 to parents who were drug users with drugs in your blood stream requiring methadone from which there was difficulty weaning you. Your father ceased drug use many years since, your mother only in 2009. The court noted that you lived with her until 2009 when she was then imprisoned and you went to live with your father. Your parents however have been active parents despite their separation. You exhibited medical, intellectual and psychological problems from childhood, exhibited behavioural problems at school. ADHD was diagnosed and you were medicated. Your behaviour did not improve. You were taken off the medication. Your antisocial behaviour at school included fighting, lighting fires, breaking windows. The family moved to Melbourne when you were eight and continued to have unstable accommodation. At primary school you were expelled in Years 6 and 7 for violence. Your difficulties escalated in 2010 when aged 13, you began to drink and use cannabis with older friends. You also began to commit offences. You were expelled from one secondary school. You have cognitive difficulties.
34 The injuries involved intensive skull fractures requiring craniotomy, evacuation of the left frontotemporal extradural haematoma. It produced long periods of amnesia. Your pre-accident intellectual functioning was at low average level. After the accident you were assessed as mildly intellectually disabled to borderline range with significant impairments of no verbal reasoning, new learning verbal memory and organisation. Your IQ overall put you in the lowest 2 per cent. Your reading age was estimated to be that of a ten year old. Post-accident there has been a significant reduction in your cognitive function the court noted.
35 A neuropsychologist in March 2012 assessed your personality and said that it appeared that it would make it difficult for you to engage in meaningful and extended rehabilitation, and if history was the best guide, you presented at least as a moderate risk to yourself and to others at that time. A pre-sentence report by DHS was referred to the court. It was of March 2013. It commented on your engagement with community based orders and Youth Justice with fluctuating results. It said your behaviour shifted and your memory was poor. On remand for the sentence in the County Court you engaged reasonably well but your engagement in education decreased with argumentative and disruptive conduct. And at the Parkville Youth Justice Precinct where you were remanded, although you were engaging well with parental support, much of your remorse in fact related to the impact of the consequences of the offending on you, rather than the victim or on the wider community.
36 This it was said perhaps explained by your acquired brain injury and intellectual disability. You were 16 at that time and your vulnerability was of concern to those dealing with you because of your immaturity and vulnerability to others. The report assessed you as suitable to be sentenced to a Youth Justice Centre.
37 A progress report of July 2013 dealt with your progress in custody leading to the Supreme Court appeal. It was said that you have settled and were well behaved and you were compliant with staff, you completed tasks, took part in education and supporting programs. However there were still concerns. You made false allegations to be moved to another unit. An adolescent forensic health service assessment found no acute mental health concerns but counselling was made available. Overall it was felt that your attitude to your offending was more reflective and pro-social at that time.
38 The court then dealt with your priors and subsequent offending which is also clearly relevant to this sentence. I will not repeat what can be found at paragraph 67-74. The court's disposition at paragraph 77 reflects the stated considerably difficult nature of fixing a sentence which reflects all the competing considerations. The culpable driving there was aggravated by a number of factors. The court set out six regarding your circumstances which it considered. Your reduced moral culpability, the absence of general deterrence as a factor due to your limited intellectual capacity and psychological problems and acquired brain injury. The premorbid state of the effect of the head injury provided an explanation for the offending before, at the time and subsequent to the incident offending, and therefore specific deterrence had a limited role. That is what the court said. I am unsure why this condition would affect the offences before if the head injury was occasioned as a result of the driving in this case, but this is what the court stated at paragraph 82.
39 You pleaded guilty at an early stage which because of your amnesia post-accident was not perfunctory. There was too much doubt observed the court to make a finding in your favour in the context of remorse. The court then treated the head injury as extra-curial punishment and sixthly, express your prospects for rehabilitation as guarded by reason of your cognitive and psychological problems to fail properly to understand what you had done wrong in the past and to reflect and learn from it. That was a very prescient statement from the court to make in the light of these offences with which I am to deal today.
40 You were 16 and the court could not countenance a sentence which assumed you were beyond redemption, however a total effective sentence not exceeding three years, the court felt enabling Youth Justice Centre Order would have been inappropriately live. The court instead imposed a total effective sentence of three years and nine months with what it termed a shortish non-parole period of one year and nine months to give you "the best possible balance of detention and supervision after release as will facilitate whatever rehabilitation is possible." It can only be surmised that the hope of the court back in 2013 proved largely unfounded and unable to be realised. The court recommended like the judge below to the parole board, to make an order directing you to be transferred to serve your sentence in a youth justice centre.
41 I have noted this matter as part of my sentence in great detail because very scant reference to its contents was made of these details during the plea which in my view would have appropriately framed the relevant history in this case of the accused in a case which is very rare. That is one in which the accused comes before the court not only with a difficult history and circumstances but one in which he carries a prior of culpable driving, making this sentencing exercise particularly difficult.
42 Indeed the plea outline (Exhibit 3) was a very short document of one page and six dot points with your personal circumstances being referred to by reference to the decision I have extensively quoted, the outline asserted these facts. You are now 21 years old, your father died in 2016, you have spent most of the last five years in custody, you passed Year 11. You have used methamphetamine since aged 18 when free in the community. You pleaded guilty at the earliest opportunity and the plea has facilitated the course of justice. You have been in custody since 12 October 2017. I take all of those matters into account.
43 The plea itself was concise. Having tendered reports from Mr Jackson of June 2018 and Mr Cunningham of September 2018, counsel submitted that the main mitigating factors of significance in 2013 before the Supreme Court did not have the same significance in 2018 because of your age, because you now have a prior for culpable driving and because you have recovered from the acquired brain injury suffered in the earlier notable accident the subject of the prior. Unlike 2013 it was submitted that general deterrence and special deterrence are "very much in the mix."
44
As to prospects of rehabilitation I was referred to paragraph 5 of
Dr Cunningham's report to which I will refer in a moment. It was conceded that denunciation and community protection are now primary sentencing purposes.
45 The five years alluded to above spent in custody have been largely in youth justice detention but since December 2017 it has been in adult gaol. It was said your mother was in court and was supportive and some friends have visited you in gaol. It was conceded not only each time you have been paroled that you have reoffended and been sent back to serve the parole period, but that you were on youth parole at the time of the offending which I agree is an aggravating feature. You have been released on 18 September only to commit this offence on 9 October 2017. In adult custody you have been at the Melbourne Remand Centre, at the Melbourne Assessment Prison and Port Phillip Prison.
46 It was submitted that the time spent serving time due to youth parole should be considered "Renzella time" and that I should apply totality and proportionality principles and not crush you by this sentence. Totality and proportionality are clearly principles which must be considered invariably in every sentence and I have given them considerable consideration, particularly with a view to the periods you have spent in detention in the past five years irrespective of how they may be described.
47
Mr Jackson, a clinical neuropsychologist wrote a comprehensive report dated
8 June 2018 in relation to his neurological assessment of you. He was asked to express his opinion as to current level of cognitive functioning and any evidence of a neuropsychological disorder. Mr Jackson elicited a history from you including your poor educational curriculum, your lack of any occupational work history. You told Mr Jackson that you got a brain injury in 2011, you were in a coma for seven days, had rehab treatment for a few months. You did not notice you said, any changes in your thinking skills or behaviour following that.
48 You said you started using Ice aged 18 daily and you told him you had used ice leading up to the index offence. The report contains a brief family history and history of offending as it relates to reclusion after the earlier conviction. You left Parkville Youth Detention in 2015 but after reoffending parole was cancelled and you were sent to Malmsbury Youth Training Centre in 2016. Mr Jackson outlined the various reports which are surveyed at pp.4, 5, 6 and 7. He noted a report of April 2017 of the Department of Justice in which it was noted that since involvement in youth justice you have been the subject of four community based orders, two youth residential centre orders, one youth residential parole order, four youth justice centre orders and two youth parole orders.
49 The then current justice centre order was due to expire in August 2017, you had spent 173 days on remand, three years and three months serving four separate custodial sentences which is a total of three years and nine months in custody. You were in custody when your father died in June 2017. I note only in passing that the report Mr Jackson refers to in this context to that of Ms La Rosa, the Senior Aboriginal Focus Care Manager of the Department of Justice. As noted in the Supreme Court sentence of 2013, it seems your mother had Aboriginal blood, neither she nor you identify with this heritage at all. Your behaviour in Ms La Rosa's report was said to have been good but you had not attended programs as you do not feel they are beneficial to your needs.
50 Another interesting report is referred to by Mr Jackson. It is a report of June 2017 from the Department of Justice and is a suitability for youth justice centre order. That report noted you had been residing in transitional housing of the Salvation Army and been enrolled at Box Hill TAFE doing a certificate. You have been using Ice and GHB on a regular basis. Most relevantly it noted that you recognised that your acquired brain injury caused a significant deficiency in consequential thinking and acknowledge your offending behaviour was unacceptable. This was only two months before this offence that I am dealing with here.
51 You had been released on youth parole in July 2016 but because of lack of engagement and reoffending, the order was cancelled and you returned to Malmsbury in October 2016. You told Mr Jackson you had no physical problems, no depression, anger impulse control, that you are able to live independently but never had a drivers licence, did not do any shopping, or payment of bills or had any particular leisure pursuits. You are not on any medication. Mr Jackson considered several neuropsychological tests which he described. He did not note any signs of hard psychiatric symptoms or signs of behavioural problems. You are of borderline to low average premorbid abilities that "hold up well to the effects of brain injury and mental health conditions." He reported a general intelligence, learning and memory, language skills amongst others. In summary there was no evidence of disordered impulse control, poor anger management or mood disorders.
52 He compared his test assessment with that of Professor Brewer of 2012 post accident. You performed significantly better in all of those tests with significant improvement which is likely to relate to the recovery from brain injury. Though that injury was significant at the time, such injuries often have reasonably good outcomes as they appear to have in yours. You have therefore shown quite a good recovery from the previous brain injury with some small ongoing impairment. The residual injury is mild. You do not have says Mr Jackson, a primary cognitive condition which may have contributed to offending behaviour due to lack of consequential thinking or poor impulse control and this is an important finding.
53 Due to your history Mr Jackson raises the possibility of oppositional defiance disorder or even conduct disorder in childhood diagnosis which were beyond the scope of his assessment. This is important because he says such childhood diagnosis often leads to antisocial personality disorder traits in adults. He concludes to the index offences that problems due to traumatic brain injury are unlikely to be the primary causes of your behaviour. The reasons for your behaviour on this occasion is due to behaviour and personality issues you have had for many years which preceded your brain injury. In his prognosis in terms of the brain injury, any cognitive or behaviour impairments associated with it are to be considered permanent and stable. Mr Jackson candidly writes that of more concern is the prognosis in terms of your behaviour and personality traits and potential offending behaviour in the future. He sounds a note about institutionalisation, though not expressed in those terms. You do not have an intellectual disability and your residual brain injury is mild in degree. Prison routines will not provide too many challenges once inculcated by repetition. None of your cognitive deficits opine Mr Jackson, are likely to have a major impact on your time in custody. I take this very helpful report into account.
54 Dr Cunningham provided a report dated September of his psychological assessment of you. He noted in your background that after your parents separated at age 12, you kept the relationship with your father. You left the family home at 18 but did not have your own stable accommodation thereafter. You have had no serious relationships and have no children. Apparently your mother's been banned from visiting you. In the context of medical history, you stated you do not think about the accident that caused the death of your friend, and you choose not to think about the current offence. These are statements which cause some concern. You told Mr Cunningham you were using Ice at the time.
55 Your psychological assessments indicated traits of an antisocial personality style in the sense that your self perception is one unfettered by the structure of the social customs and constraints of personal loyalties, unencumbered by obligations, routine and persons in apparent freedom. This too is disturbing. You do not have a mental illness, depression or anxiety, neither thought disorder or psychosis nor suicidal ideation. You presented with limited insight and limited remorse with regard to your offending behaviour. You prefer not to think of the consequences of your actions. You told Mr Cunningham you did not have a hard time in prison and you liked adult gaol better than youth detention as you were not forced to engage in rehabilitative programs.
56 This report causes a level of consternation at the contumacious nature of your mindset and the likely recidivism outlook and prospect for your future. You would no doubt benefit from transitional support once released as well as vocational training in prison. I take his helpful report into account.
57 I have set these reports out at unusual lengths before the court because it is my view that in this difficult synthesis I have concluded that community protection, general and specific deterrence are primary sentencing consideration, and that the mitigating influence of your youth whereas though not expunged or extinguished, must yield to these other considerations. This is so because the objective gravity of your offending, the substantial level of moral culpability, the lack of evidence of any real remorse, the very poor prospects for rehabilitation and your prior relevant history make this an appropriate case where youth forfeits its primacy and must be subjugated to the other considerations.
58 There could be no argument that it is in the community's interest in enhancing the prospects of rehabilitation of young offenders. Thus endeavouring to avoid the risk of young offenders becoming institutionalised in gaol, the court in my view should be slow to conclude that even a person of your age and background and history is beyond redemption. Young offenders are immature, more likely to make ill-considered and rash decisions, they may lack insight, judgment and self-control usually possessed by an adult. They may not fully appreciate the nature and consequence of their behaviour.
59 Courts do recognise the potential for young people however to be rehabilitated and ultimately reclaimed, and are particularly aware of the effect of adult imprisonment on young offenders in the long term recrudescence of antisocial propensities and tendencies particularly where a young offender is beginning to appreciate the effect of his past criminality. It seems to me that this is not the case in your case. The authorities have clearly indicated this is hope for redemption, it is not always the case. Or that young offenders cannot be held appropriately accountable for their criminal behaviour. This is one of those cases in my view where youth and rehabilitation must take a back seat to other considerations.
60 You have been given many previous chances to progress through education and supervision, youth dispositions and opportunities to reform. None of these attempts have been successful. Culpable driving is an offence predominantly committed by young men often under the influence of drugs. Your priors from 2010 onwards are peppered with criminality involving theft of cars, criminal damage, violent offences, many driving offences, failure to have proper control of a motor vehicle, unlicensed driving, failure to stop a vehicle at police request, driving whilst disqualified and culpable driving.
61 Given the circumstances of the offending in your circumstances, sentencing objectives of deterrence, denunciation and just punishment and community protection must be prominent, the weight to be attached to youth must be significantly reduced. The realistic prospects of your rehabilitation I view are so bleak that consideration of youth is close to extinguished. However as I have noted above, I should be loath to reach such a point. A life post release may yet encounter some redeeming possibility or change of heart or some measure of enlightenment. I was asked not to impose a crushing sentence. A sentence is said to be crushing when it is of such length that it would induce a feeling of helplessness in you if and when you were released. Or which results in the destruction of a reasonable expectation of a useful life after release. The sentence will be substantial but not for that reason be crushing in my view. A richly deserved sentence should not be reduced because an offender may feel crushed by it. In my view you will not be.
62 The sentence will be fair and just reflection of your conduct's criminality. The evidence as a whole does not demonstrate that your past history or low intellectual ability reduces your moral culpability or renders you an inappropriate vehicle for general and specific deterrence and the court must send a clear message of general deterrence, namely that the community will not tolerate driving by a person likely under the influence of drugs, at excessive speeds. The objective gravity of the offence is aggravated by a number of factors, the homicidal speed at about 100 kph an hour over the applicable speed limit, your likely incapacity to properly control your vehicle while driving at that speed, your history of motor car related driving offences, the vision of the accident, brief as it is, makes for horrific viewing.
63 Although no principle of sentencing dictates that more severe sentences be metered out to those who repeat criminal conduct, and I will not be again punishing you for your earlier offending, your priors demonstrate that your moral culpability is high, particularly in view of the culpable driving prior. Undeterred by previous punishment, you took the risk of driving at such a speed in such a dangerous way over a significant stretch of roadway, ran red lights, and the consequences of your actions were devastating. Your conduct may have been impulsive and unplanned but it lasted over a significant distance, was extended and deliberate rather than momentary. The risk to which you exposed the public especially along a very popular and significant roadway, was as high as it gets. Catastrophe was inevitable. A worthy and loved person died.
64 I will order that the sentences for the summary offence will be concurrent, but I intend to order some cumulation for the other offending representing as they do discrete and separate episodes and offending.
65 I was referred to the sentencing Snapshot Number 200 of April 2017 in relation to culpable driving. I have considered its impact in relation to sentencing trends and current practices in relation in particular to the years 2015 and 16. The statistics there encompassed are useful, general indicators but caution must be exercised in relation to the limitations inherent in such snapshots. I was referred to a number of cases which were said to be comparable and relevant to the issues raised in this case. I have supplemented these by a number of other culpable driving authorities. Although the cases mentioned during the plea are useful comparators for matters of general principle and approach, this case as all other cases must be judged by careful assessment of its particular circumstances made rarer by the existence of the culpable driving prior in your history, the issue of your youth and the other circumstances in the offending. As was fairly acknowledged by the prosecution, the sentencing exercise should not be overwhelmed by the prior but form part of a complex assessment of all relevant aspects which I have mentioned.
66 Please stand Mr Kennett.
67 On culpable driving, Charge 2, you are convicted and sentenced to 10 years' imprisonment.
68 On theft, Charge 1, you are convicted and sentenced to 12 months' imprisonment.
69 On the fail to render assistance, Charge 3, you are convicted and sentenced to 2 years' imprisonment.
70 On failing to comply with a court order to provide assistance, Charge 4, you are convicted and sentenced to 6 months' imprisonment.
71 On the drive while disqualified, Summary Charge 6, you are convicted and sentenced to 9 months' imprisonment.
72 And on entering an intersection against a red light, Summary Charge 9, you are fined $1,000.
73 I order that 3 months on Charge 1, 9 months on Charge 3 and 2 months on Charge 4 be served cumulative on Charge 1. This makes a total effective sentence of 11 years and 2 months imprisonment. I fix a non-parole period of 8 years.
74 Culpable driving causing death is a serious motor vehicle offence. Pursuant to s.89 of the Act, I disqualify you from obtaining a drivers licence for a period of 12 years. Having recorded a conviction in relation to theft of a motor vehicle, I disqualify you from driving for a period of three years. I note that it be noted in the records of the court and I make a declaration in respect of a period of 325 days excluding today as a period of pre-sentence detention.
75 But for the plea of guilty I would have sentenced you to 14 years' imprisonment with a non-parole period of 9 years.
76
Yes thank you, you can remove Mr Kennett. I want to briefly repeat something that I said at the end of the plea. The numbers at the end of a sentence are never meant to be or assign a numerical value to the value of a life that's lost. That applies equally to your family as it does to the family of
Mr Kennett I'm afraid. Lives lost in this way whether to death or for that matter to a long term of incarceration, it's always sad and tragic. The life that was lost as a result of this particular offence is invaluable and immeasurable. This is a legal decision based on longstanding legal principles that endeavour to act in a difficult balance and act to achieve justice. Hopefully it may achieve a small measure of rehabilitation for those who have suffered that loss and that grief.
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