Director of Public Prosecutions v Kemp

[2018] VCC 486

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00562

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEPA KEMP

---

JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	9 April 2018
DATE OF SENTENCE:	17 April 2018
CASE MAY BE CITED AS:	DPP v Kemp
MEDIUM NEUTRAL CITATION:	[2018] VCC 486

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M Roper	Office of Public Prosecutions
For the Accused	Mr S Tovey	Slades & Parsons Criminal Law

HIS HONOUR:

Introduction

1Kepa Kemp you have pleaded guilty to 5 charges of armed robbery contrary to section 75A(1) of the Crimes Act 1958 which carries a maximum penalty of
25 years imprisonment in each instance.

2You have also pleaded guilty to 2 related summary charges:

·     Charge 8 - committing an indictable offence whilst on bail contrary to section 30B of the Bail Act 1997, which carries a maximum sentence of three months imprisonment; and

·     Charge 10 - failing without reasonable cause to appear in accordance with your undertaking of bail contrary to section 30(1) of the Bail Act 1997, which carries a maximum penalty of two years imprisonment.

3You have also admitted your prior criminal record.

Circumstances of the offending

4A prosecution opening was tendered on the plea which may be summarised as follows:

Charge 1  

5On 10 December 2016, at approximately 3:15 pm, Andy Tchiang, aged 37, was working as a store attendant at the Tobacco, Gifts and Accessories store at 3/133 Watton Street, Werribee when you entered the store.

6You and Mr Tchiang had a short conversation about the products before you walked behind the counter, produced a small axe and demanded money from Mr Tchiang by saying ‘Where's your cash?’  Mr Tchiang opened the till and you then forced him to lie on the ground. You stole approximately $2500 from the till and asked Mr Tchiang where the CCTV recording device was located. He directed you to a laptop which you then took. As you left the store Mr Tchiang noticed that a quantity of cigarettes had also been taken from under the front counter. 

7You were seen by witnesses holding the stolen property outside the Westpac Bank at 50 Watton Street, Werribee whilst yelling ‘Who wants free cigarettes’.

Charge 2 

8On 19 December 2016, at approximately 6.57 pm, Ms Kullo Ibrahim, aged 20, was working at the counter at the Lucky Seven convenience store situated at 43 Rose Grange Boulevard, Tarneit when you arrived outside in a vehicle driven by an unknown woman. 

9You have exited the vehicle and entered the Lucky Seven store where you walked behind the store counter and said ‘Right give me the money’. As you did this, you forcefully grabbed hold of Ms Ibrahim's cardigan. Ms Ibrahim opened the register and you stole $250 while holding
Ms Ibrahim by her cardigan with your left hand and holding a silver hammer with a blue handle with your right hand. You said ‘Just do what I'm telling you and I won’t hurt you’. 

10You stole an unknown quantity of cigarettes and lighters and left the scene in the same vehicle with the female driver.

Charge 3 

11On 24 December 2016, at approximately 11.55 am, Robert Setio, aged 29, was working at the Sharp Street Pharmacy at 2 Sharp Street, Hoppers Crossing when you walked into the pharmacy. 

12You were approached by Mr Setio who enquired of you if he could give you any help. You replied ‘I need help for the nits’. Mr Setio pointed a product out to you and stated ‘I'll leave it with you’. As Mr Setio was walking away, you splashed petrol on him which you had in a Dare drink bottle. The petrol landed on Mr Setio's back and arms. 

13You then threatened Mr Setio by saying ‘Give the money or I'll put fire on you’.  As you said this you were holding an orange cigarette lighter in your hand. You and Mr Setio walked behind the counter to the register. You then instructed Mr Setio to ‘Stand down’ and threatened him again by saying ‘I'll seriously put fire on you’. As you said this you splashed more petrol on
Mr Setio's torso.

14Fearing for his safety Mr Setio opened the cash register and you took $300. You also took two packets of Panadeine Forte tablets from behind the counter.  You then took Mr Setio's mobile phone, reached into his back pocket and stole his wallet containing $200, a key to the pharmacy front door, a Medicare card, a Victorian drivers licence, an ANZ debit card and other business cards. 

15You then left the pharmacy. As you were leaving you stole an unknown quantity of perfume bottles.

16You were captured on CCTV footage holding a drink bottle and an orange cigarette lighter. Police later obtained forensic evidence from these items which you had left at the scene.

17On 24 December 2016, a 10-year-old child found business cards outside
21 Powell Drive, Hoppers Crossing which were in the name of Mr Setio.

Charge 4 

18On 26 December 2016, at approximately 10.10 pm, Mohamed Boru, aged 58, was working as a taxi driver at the Hoppers Crossing train station when you approached him and asked to be driven to Werribee Plaza.  As you sat in the front passenger seat you had a conversation with Mr Boru before asking him to stop outside 94 Derrimut Road, Werribee. 

19You then produced a 25 centimetre kitchen knife, held it towards Mr Boru's neck and demanded, ‘Give me whatever you have in your pocket.’  Mr Boru gave you $80 cash and then pressed the duress alarm inside the taxi.  Mr Boru drove approximately 50 to 100 metres with you still in the taxi and stopped outside the Aquatic Centre at 80 Derrimut Road, Werribee where you cut the CCTV camera cord, pulled out the camera and left the car.

Charge 5 

20On 27 December 2016, at approximately 7.40 pm, Shane Hunt, aged 37, was sitting in his vehicle outside a shop at 70 Warringa Crescent, Hoppers Crossing when you parked next to him in your blue Ford Ute. 

21You got out of your car and took a large wooden handled axe from the tray of the ute. You produced the axe and demanded cash from Mr Hunt by screaming ‘Give me all your money now.’ Mr Hunt argued with you and you reached into Mr Hunt's vehicle and stole a Samsung mobile phone. Afraid for his safety Mr Hunt sped off from the scene.

Arrest 

22On 27 December 2016, at approximately 8.20 pm, police attended
13 Third Avenue, Hoppers Crossing and found you standing near your vehicle.  You were arrested and upon searching your vehicle, police found Mr Hunt's stolen Samsung mobile phone and the large wooden handled axe.  You were conveyed to Werribee Police Station for an interview which was commenced although discontinued after you were deemed unfit by a forensic medical officer.

23Police conducted further enquiries including examination of your mobile phone.  Text messages were found that connected you temporally to some of the robberies.  For example on 12 December 2016, a text message was sent from your phone saying ‘I came home last night and coma. I've got cigs for sale’.  Similarly on 22 December 2016, a text message was sent from your phone saying, ‘Do you want any ciggies’.

24On 27 January 2017, at approximately 8.55 am, police executed a search warrant at 45 Stewart Crescent, Rockbank. During this search they found an Everlast jumper worn by you in CCTV footage in relation to charge 1, a blister pack of Panadeine Forte tablets and 10 bottles of assorted perfume. Police also conducted a Roads Corporation check on the Ford Utility which demonstrated it was registered to you.

Summary offences 

25When the armed robbery the subject of charge 1 was committed on 10 December 2016, you were on bail for a charge of driving while exceeding the prescribed concentration of alcohol. This constitutes summary charge 8 - Commit an indictable offence whilst on bail. You also failed to appear in relation to that charge on 23 December 2016 at the Werribee Magistrates Court.  This constitutes summary charge 10 - Failing to answer bail.

Objective seriousness of the offences 

26It is self-evident that the circumstances that make up each of the armed robberies are serious.  In each instance you approached vulnerable victims who were simply going about their business, often referred to as soft targets because of their vulnerability. 

27In each case you produced a weapon and used physical force on the victims. In relation to charge 1, you forced the victim to lie on the ground, in relation to charge 2, involving a young woman aged 20, you grabbed a hold of her arm as you held the weapon in your other hand. In relation to charge 3, you splashed petrol on the victim and threatened to set him alight. In relation to charge 4, you produced a large kitchen knife and held it towards the victim's neck and in relation to charge 5, while you did not physically touch the victim you produced a large wooden handled axe from the tray of your utility and made threats to him whilst holding that axe.

28Charge 3 is particularly disturbing as it involved you filling a drink bottle with petrol and entering the pharmacy with that drink bottle and a lighter thus involving a degree of pre-planning. Further, after splashing the petrol on the victim, you reached into his back pocket and took his wallet together with other items you had stolen from his store.

29In my view these are all serious examples of this type of armed robbery on soft targets.

Victim Impact Statements 

30Two victim impact statement were tendered on the plea. One from Mr Setio, the owner of the pharmacy in relation to charge 3. Not surprisingly, he states that he feels distressed since the incident and has difficulty sleeping. He also stated he is afraid to work by himself in the pharmacy and has been forced to employ security guards which has caused a great financial loss to his business.

31The second victim impact statement is from Kullo Ibrahim in relation to charge 2. She too outlines the effect of the crime on her and that she felt traumatised and scared. She has difficulty comprehending what has happened and also has had trouble sleeping and carrying out her daily activities. She fears travelling alone and has not returned to work.

Personal circumstances 

32Mr Tovey, who appeared on your behalf, presented a comprehensive plea outlining the details in relation to your background and the circumstances leading up to your offending.

33You are 41 years of age and grew up in New Zealand where you were raised by your mother and paternal grandparents. Your parents separated prior to your birth and you did not meet your father until 1998 when you were aged 26. You enjoyed a close relationship with your father until his death in 2001. In 2002 you moved to Australia with your family.

34After completing school you worked in New Zealand as a timber merchant and then later at the Auckland City Council parks department. Your first significant relationship was with your wife Noeleen who you married at a young age. From that marriage you have two daughters aged 22 and 15. You also have a stepson who is aged 25.

35The relationship ultimately broke down as a result of your wife developing significant mental health and drug and alcohol issues following the birth of your youngest daughter. You took on the role of being a sole carer for your children which was a significant toll on you. However I note that one of your daughters has written a reference on your behalf which speaks very highly of you as a caring, hard-working and loving father.

36After your arrival in Australia you were employed by McKillop Family Services as a residential caseworker between 2002 and 2005. After that you were employed by SCOPE disability services. You had a direct role working with adults suffering disabilities and were involved directly in their personal care.  You remained in this employment for some eight years and then worked at Yooralla for five years up until the time of your arrest.

37In 2013, you commenced a new relationship with Miranda Jowette and, in late 2015, she became pregnant. The pregnancy was stressful in that at the
12 week scan you were informed that the baby possibly could have Down Syndrome and heart difficulties. Ms Jowette suffered depression and psychosis during the pregnancy and was non-compliant with medication, ultimately giving birth to the child in a psychiatric facility. Throughout the pregnancy she required a high level of observation and care which placed significant strain upon you and your relationship. It was submitted that the combination of these complications with your partner’s pregnancy and her mental health issues, together with working to support the family and caring for your other children, placed an enormous amount of stress on you. It was in this context that your own mental health was compromised.

38Following the birth of the child, because of the complications identified, she required an eight week stay at the Royal Children's Hospital until her medical conditions had stabilised. At the same time Ms Jowette was at the Sunshine Hospital in the psychiatric unit. In October 2016, after a short period at home, Ms Jowette was again admitted to a psychiatric unit and ultimately at around this time your relationship broke down.

39In October 2016, you sought assistance from your General Practitioner as you had begun to use and abuse alcohol to the extent that you were drinking up to two bottles of wine a night. The notes from the doctor however simply acknowledge what you told him and it seems no formal structures were put in place and you were unable to address your issues at that stage.

40In November 2016, you attended the Wyndham Hospital where the notes disclose that you admitted you had been drinking 4 to 5 litres of cask wine per day. You also admitted that you had been smoking marijuana and using ice.  The hospital note states ‘came to ED today as wants to get help for alcohol dependence’. Later in November 2016, you again attended your local GP indicating that you had slept in a park. You had called the CAT team but they did not want to help. Also in November 2016 Ms Jowette had taken out an intervention order against you in relation to family violence which was the catalyst of you being removed from the family home. It was shortly following this period that your offending began.  

41A report was prepared by clinical psychologist Carla Lechner and tendered on the plea. Whilst she observed that your history and your presentation was indicative of a major depressive disorder, she also observed that there was no evidence of psychotic processes and that you did not suffer any symptoms of post-traumatic stress disorder. She notes that whilst there was a suicide attempt by you upon your entry into prison that at the time of her assessment, you did not currently suffer any suicidal thoughts and were not engaged in self harm. She did find however that you presented with symptoms of alcohol, cannabis and stimulant use disorder which was in early remission. As to your observed depression, she states that you were responding well to the combination of therapy and antidepressant medication. You involved yourself in a number of courses and programs whilst in custody demonstrating that you have a genuine commitment to rehabilitating yourself. 

42Tendered on the plea was a bundle of seven references from family and friends.  Many of these people attended the plea hearing in support of you. As noted above, your daughter outlines that you are a dedicated, caring and loving father assisting her through difficulties and life events including her own pregnancy during the time when you were suffering your own stressors in relation to your partner and her pregnancy. In general terms the other references all attest to your criminal behaviour being completely aberrant, which I accept. As a man of 41 years of age with no relevant prior criminal history, to commit serious offences of armed robbery in the way that you did seems extraordinary. The references also attest to the genuine remorse you have expressed in relation to the victims of your offending.

43Also tendered on the plea were a number of medical documents, including documents provided by your general practitioner, and other certificates of courses you have completed both in and out of custody. I take all these matters into account.

44You also gave evidence on the plea and wrote a letter, which you confirmed on oath. In your evidence and in your written letter you express clearly your genuine remorse in relation to the victims of these crimes and your genuine commitment to turning your life around.

Sentencing considerations 

45I take into account your plea of guilty which was entered at the earliest possible opportunity. It is in this instance indicative of remorse and has saved the court and the community the time and expense of a trial and thus facilitates the course of justice. Most particularly, it saves the witnesses the stress of having to give evidence.

46As noted above in relation to your own evidence, and the evidence of others that was presented on the plea, in my view you have demonstrated genuine and true remorse. Further, you have, since recovering from you addictions, shown genuine empathy to your victims and insight into your offending.

47You have a very minor prior matter for driving whilst disqualified in 2011 where you were given an adjourned undertaking without conviction. In the circumstances this plays no part in my consideration. On the other hand, you have demonstrated that you were, up until this offending a person of excellent character with dedication to your family and a man who has contributed enormously to the community by working in the public sector with vulnerable people. As noted above, the offending is without doubt completely out of character in comparison with your life up until that point.

48As discussed on the plea, although the report of Ms Lechner identifies symptoms of major depressive disorder, in my view the evidence does not give rise to the application of the Verdins[1] principles. There is no evidence that supports a conclusion that you were suffering a major depressive disorder at the time of the offending even if at the time of the assessment you were exhibiting signs of depression. Rather, in general terms, Ms Lechner states that ‘Mr Kemp appears to have suffered a break-down in his mental health and turned to drugs and alcohol to cope with his distress’.[2]

[1] R v Verdins (2007) 16 VR 269.

[2] Exhibit D2 – Psychological Report of Carla Lechner dated 29/12/2017, p 6.

49The difficulty in your case is that your offending was precipitated by a reckless abuse of alcohol and drugs. The significant stresses you were under leading up to the time of these offences no doubt had an effect on your mental health. It was in this context you began to abuse substances as a way of coping. However, given your insight and understanding of the effects the alcohol and drugs were having on you, as evidenced by your visits to the GP, it becomes difficult to disentangle any mental stress you may have been suffering with the voluntary ingestion of drugs and alcohol and their consequent affects. Put another way, it is difficult in the circumstances of this case, without further evidence, to establish whether the mental state you were in at the time of the offences has the necessary connection to the offending.  As such, in my view the Verdins principles are unable to be engaged in this instance in order to reduce general deterrence.

50Nonetheless as has been outlined in cases such as DPP v O'Neill, an assessment of an offenders moral culpability ‘necessarily involves a careful consideration of matters personal to the offender, which may provide an appropriate explanation as to how, particularly in a case such as this, a hitherto law abiding person has, in an outburst of uncontrolled anger, committed such a serious crime’.[3]

[3] DPP v O’Neill (2015) 47 VR 395, [97].

51I accept that at the time of your offending you were in a terrible state. You were an otherwise law-abiding committed family man when your life circumstances became extremely difficult and in your case you lost control. However, rather than seek assistance at that time from family or others, you continued to engage in dangerous and reckless behaviour by abusing drugs and alcohol. You did attempt to seek some medical help which is a double-edged sword. On the one hand, it is regrettable that despite asking for help it was simply not available to you at the time.  On the other hand, seeking help demonstrated that you had insight into the effect alcohol and drugs were having on you but you chose to commit these offences.

52You are not an Australian citizen. As such, because of the sentence I must impose, you will be subject to the provisions of section 501 of the Migration Act 1958 and that there is a real chance you will be unable to remain in this country with your family upon your release. I take into account the prospect of your deportation as a relevant consideration in the sentencing process. The prospect of your deportation will undoubtedly weigh heavily upon you during your sentence.

53Armed robbery is a serious offence and as rightly submitted on behalf of the Director of Public Prosecutions in this instance the victims were soft targets. As such, general deterrence must weigh heavily in the sentencing discretion. Just punishment and denunciation are also relevant. It was also submitted that there must be some degree of cumulation between the separate offences of armed robbery and I accept that this must be the case.

54In my view specific deterrence should carry very little weight in this sentence.  You have no prior convictions of any relevance. Up until the time of this offending you had lived an exemplary life. Further, since this offending you have demonstrated genuine remorse and a genuine commitment to turning your life around once you are ultimately released from custody. For the same reasons, together with the fact that you have a large and supportive network of family and friends, in my view your prospects of rehabilitation are very good.

Sentence

55Mr Kemp please stand. 

56On charges 2 and 3 you are convicted and sentenced to 4 years imprisonment.  On charges 1, 4 and 5 you are convicted to 3 years imprisonment. Charge 3 will be the base sentence.

57I direct that nine months of the sentence on charges 1, 2, 4 and 5 be cumulative on each other and on charge 3. That makes for a total effective sentence of 7 years imprisonment. 

58I direct that you serve 4 years imprisonment before becoming eligible for parole.

59Pursuant to s 18 of the Sentencing Act 1991, I declare that 475 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

60In relation to summary charge 8 - committing an indictable offence whilst on bail you are convicted and sentenced to 1 month imprisonment. 

61In relation to summary charge 10 - failing without reasonable cause to appear in accordance with your undertaking of bail you are convicted and sentenced to 1 month imprisonment.

62Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 8 and a half years with a non-parole period of 5 and half years imprisonment.

‑ ‑ ‑