Director of Public Prosecutions v Kemp
[2017] VCC 1343
•15 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-00102
CR 17-01139
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB KEMP |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 September 2017 | |
DATE OF SENTENCE: | 15 September 2017 | |
CASE MAY BE CITED AS: | DPP v Kemp | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1343 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Armed robbery – Theft – Assault with a weapon – Plea of guilty
Legislation Cited: Sentencing Act 1991
Cases Cited: R v Verdins (2007) 16 VR 269
Sentence: 4 years and 9 months’ imprisonment with a non-parole period of 2 years and 6 months’ imprisonment; 351 days pre-sentence detention. Section 6AAA declaration: 8 years imprisonment with a non-parole period of 5 years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R Champion | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr A Willson | Fitzroy Legal Service |
HIS HONOUR:
1 Jacob Kemp, on 8 September 2017, your plea in mitigation was conducted in respect to Indictment G12693678 containing two charges of armed robbery (Charges 1 and 2) and one charge of theft (Charge 3). In addition, you fall to be sentenced in respect to the related summary offence of assault with a weapon. You also pleaded guilty to Indictment H10915945 containing a charge of robbery (Charge 1) and a charge of obtaining property by deception (Charge 2).
2 The maximum penalties for the offences to which you have pleaded guilty are:
·armed robbery – 25 years’ imprisonment;
·robbery – 15 years’ imprisonment;
·theft – 10 years’ imprisonment;
·obtaining property by deception – 10 years’ imprisonment; and
·assault with a weapon – 2 years’ imprisonment.
3 You admitted your criminal record which, considering your age, is extensive. You are 22 years of age and from June 2013 until September 2016, you have accumulated 56 findings of guilt or convictions from nine court appearances. You have 35 prior convictions for dishonesty offences including robbery and attempted robbery. You have four prior convictions for violence, three prior convictions for committing indictable offences whilst on bail and two prior convictions for failing to answer bail during the period of time covered by your criminal record. You have been sentenced to a number of Community Correction Orders and a suspended sentence and breached them.
4 Tendered as Exhibit A and read aloud in court was the prosecution opening. In summary, on 19 September 2016 at 9.30 pm, you robbed at knifepoint a man who was walking home along a street in Burwood. You asked him for a cigarette and he replied that he did not smoke. You produced a knife from your pants and stole $100 from your victim. Shortly thereafter you were caught on CCTV at a nearby BP Service Station on the Burwood Highway (Charge 1).
5 After leaving the BP Service Station, you walked back towards the street where you had robbed your first victim and found your second victim standing near his parked vehicle enjoying a cigarette. You told your victim to “Give me the money” and showed your victim a knife tucked in the front of your pants. You stole $200 from your victim (Charge 2).
6 Subsequently on 29 September 2016, you conversed over Facebook with your final victim who was offering her mobile phone for sale on the internet. After agreeing on a price, it was agreed that your victim would attend at the place where you were then living. Your female victim arrived with her male companion. She met you outside the house and opened the box to show you the phone. You took the phone out of the box and said, “Thanks very much”, and put it in your left pocket. You and an unknown co‑offender then walked away. Your victim took a few steps towards you and you turned around, produced a knife and said, “Don’t come near me we both have knives.” Your victim went back to her car and called the police (Charge 3 and summary offence, assault with a weapon).
7 On 25 September 2016 you, together with two co‑offenders got on a tram near the intersection of Warrigal Road and the Burwood Highway. You approached your victim and sat down next to him. A female passenger looked at one of your co‑offenders and he told her, “Don’t look at me dog!." You said, “Leave her she’s a white” and “We don’t do that to women”, your co‑offender replied, “I don’t give a fuck, I'll fuck up whoever I want." Suffice to say that the female passengers were frightened by this conduct. Eventually you pushed your victim into the side of the tram and asked him how much money he had. You tried to grab the victim’s wallet from his back pocket. There was a short struggle over the wallet and you pulled it from the victim’s hand and started taking items from it. You stole the wallet and its contents which included a bank card and some cash. At or about this time, one of your co‑offenders began punching the victim to the right side of his face with a clenched fist and your second co‑offender began hitting the victim in the chest with an open hand. One of your co‑offenders took out a knife and said to the victim, “You want me to take out my knife and cut you up!” To your credit, you grabbed your co‑offender’s arm and took the knife from him and put it in your pocket. You got off the tram (Charge 1).
8 As a result of the robbery being reported to police, police attended and spoke to the victim. Whilst speaking to the police, the victim used his mobile phone to log into his internet banking account and discovered that $3.50 had been taken from his account at a nearby service station in Burwood (Charge 2).
You were arrested on 29 September 2016 and interviewed under caution. In respect to the two armed robberies committed on 19 September 2016, you admitted that you committed the offences but did not recall having a weapon on you at the time. Although you admitted to carrying the knife “… for jobs like tonight”, being a reference to the theft of the mobile phone. You said the money that you took was to support your drug habit. In respect to the robbery committed on 25 September 2016, you said you got onto the tram for the purposes of finding a victim. You also admitted taking the victim’s wallet, some cash and using about $3 on his PayPass card. You said there was a bit of push and shove but asserted that there were no weapons pulled.
9 Tendered as Exhibit 1 on the plea were a number of reports relating to your development from a young child to adolescence. From as early as four years of age, your mother noticed that your behaviour was not consistent with your age and that you were easily distracted and could not concentrate on one task for any lengthy period. You repeated a year in kindergarten. These problems persisted and you were diagnosed with ADHD and treated with dexamphetamine. At age nine, you were tested for sleep disturbance and epilepsy was discounted. However, some years later when aged approximately 14 years, you were diagnosed with “absence epilepsy” and prescribed Epilim. At age 16 you underwent a psychological assessment and you were assessed in the borderline range of functioning with results in specific areas of testing as generally in the low-average to extremely-low range. In May 2001 and again in February 2012, you were assessed by Dr Frederick Jarman, consultant paediatrician, who confirmed that you were being treated for ADHD and epilepsy. He confirmed that you had a full scale IQ of the fifth percentile in the borderline IQ range. In the report of February 2012, he opined:
“He is a quiet and withdrawn boy in the office and has gone through periods of depression. He has very poor self-awareness and poor social interactional skills. He struggles to maintain quality peer friendships. His empathy skills are not well developed. He compulsively lies and seems to believe what he tells people even when the truth is obvious. He is holding down a part time job at McDonald's and seems to be coping while there. He has no ability to manage money and spends everything he earns very quickly.”
10 Accordingly, by the age of 16, you had ongoing problems with self-control, self-reflection, poor judgment, lying and problems with age-appropriate social interaction.
11 Tendered as Exhibit 2 was the report of Carla Lechner, psychologist, dated 13 December 2016, the contents of which are consistent with the contents of the documents contained within Exhibit 1.
12 You are 22 years of age and the youngest of three children. Your parents separated when you were six months old. Your mother re-partnered and you have two younger half-siblings. Your mother and stepfather separated some five years ago. While still at school you had a part time job with McDonald’s and you left school to work for that organisation on a full time basis. I was told that you liked working at McDonald’s and were well liked there. However, you stole some money whilst working at McDonald’s and your employment was terminated.
13 Throughout this period, you lived at home with your mother but after leaving McDonald’s you were unable to obtain work, you spent your days at home and frequently came into conflict with your mother. You left home when you were 18 years of age in or about 2012 or 2013 and thereafter commenced a long period of homelessness. By reference to your criminal record, it is likely that it is at this time that you commenced to offend.
14 Tendered as Exhibit 4 was a document from YSAS dated 19 May 2016. You were referred to YSAS in May of 2013 due to “criminal justice matters." Between May 2013 and May 2016, you had an extensive history of contact with YSAS through various programs conducted by or arranged by that organisation. From 2012 you were disconnected from your family, experienced chronic homelessness and you were an intravenous drug user. Since 2013 you were a daily user of services provided by YSAS including food and nutrition as well as shower facilities and respite from your homelessness. You had multiple withdrawal unit admissions through YSAS at their facilities at Glen Iris and Fitzroy to reduce your ice, cannabis and alcohol use. Between January 2015 and May 2015, you attended at “Birribi” rehabilitation centre but you were unable to maintain abstinence. You were transitioned to a refuge after discharge from Birribi and were some weeks later accepted into a mental health support accommodation program “EACH” where you remained for four months. However, once again, you left that place because of your escalating illicit drug abuse.
15 Whilst it is unclear from Exhibit 3 when within the period that you were in contact with YSAS, you became actively involved in a program known as “Krew” for a period of 18 months. You were a founding member of this activity or program. You actively participated in the program which included amongst other things purchasing a Krew vehicle, establishing a vegetable garden and you were involved in staff recruitment. You were also involved in fundraising. You were part of the core group that designed the mentor program and you attended the mentor camps. You were a regular attender at Krew meetings and involved yourself in activities like the night 70 kilometre bike ride, staff inductions and writing for the YSAS staff newsletter. During this time you were abstinent from drugs.
16 As at the time of your plea, you had been on remand for 343 days. During your time on remand you have undertaken a number of courses and the certificates that relate to them comprise Exhibit 4. Your mother has visited you while you have been in custody, although she has forbidden your younger half siblings from visiting you. The re-establishment of your relationship with your mother is at this stage in embryonic form.
17 You entered your pleas of guilty at committal mention and accordingly you are entitled to the benefits of your early plea, being that it has utilitarian value and that it is some evidence of your remorse. You are currently 22 years of age and were but 21 years old at the time of your offending. You have a long history of social, physical and learning development issues. You have experienced chronic homelessness and drug abuse from about 2013.
18 Mr Willson, solicitor, who appeared on your behalf, conceded that the only appropriate disposition in your circumstances was a term of imprisonment that involved the fixing of a head sentence and a non-parole period. He emphasised your youth, your positive previous engagement with YSAS and your attempts at addressing your drug addiction whilst in prison.
19 In light of those matters, Mr Willson submitted that you would benefit from a lengthy parole period or, as he expressed it, a shorter non-parole period.
20 Ms Champion of Counsel, who appeared on behalf of the Crown, emphasised that your offending was serious and in particular the armed robberies and robbery were serious examples of offences of their kind. You committed the instant offending whilst on a Community Correction Order and this is an aggravating feature of your offending.
21 Mr Willson on your behalf placed no reliance upon the principles of R v Verdins. However, he placed much emphasis upon rehabilitation owing to your youth. He was right to do so. However, the nature of your offending and your antecedents are such that, in my opinion, rehabilitation ought not to take a position of primacy amongst the sentencing principles that must be applied in respect to you. General deterrence, specific deterrence, denunciation and just punishment must all play important roles in arriving at an appropriate sentence in your circumstances. I am mindful of the period of progress of eighteen months or so that you made at YSAS however your prospects of rehabilitation absent total abstinence from drugs of dependence is poor.
22 In one instance you robbed at knifepoint a man who was simply walking home. On another occasion, you robbed a man at knifepoint who was quietly enjoying a cigarette while standing beside his car. Whilst in company with others, you robbed a man who was simply travelling on a tram and you did so in the presence of members of the public some of whom were frightened by your conduct and that of your co-offenders . Finally, you inveigled your last victim to the place where you were living in order to steal from her and when she protested you threatened her with a knife.
23 Members of our community are entitled to go about their lawful business without being subjected to antisocial conduct of any kind, let alone serious criminal offending of the kind that you committed.
24 By this sentence, I must punish you, publicly denounce your conduct and deter you and others from committing these kinds of crimes. Taking into account the circumstances of the offences and their effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, on Indictment G12693678, I sentence you to:
On Charge 1, armed robbery, 3 years’ imprisonment,
On Charge 2, armed robbery, 3 years’ imprisonment, and
25 On Charge 3, theft, I month’s imprisonment.
26 I order that 12 months of the sentence imposed on charge 2 be served cumulatively on the sentence imposed on charge 1. This results in a total effective sentence on Indictment G12693678 of 4 years’ imprisonment.
27 On the related summary offence of assault with a weapon I sentence you to 3 months’ imprisonment.
28 I order that 1 month of the sentence imposed on the related summary offence be served cumulatively on the sentence imposed on Indictment G12693678.
29 On Indictment H10915945, I sentence you as follows:
On Charge 1, robbery, 2 years’ imprisonment, and
30 On Charge 2, obtaining property by deception, 1 month imprisonment.
31 This results in a total effective sentence on indictment H10915945 of 2 years’ imprisonment.
32 I order that 8 months of the sentence imposed on Indictment H10915945 be served cumulatively on the sentence imposed on Indictment G12693678.
33 This results in a total effective sentence of 4 years and 9 months’ imprisonment and I fix the period of 2 years and 6 months’ imprisonment as the period that you must serve before you will become eligible for parole.
34 I declare that you have spent 351 days by way of pre-sentence detention.
35 Pursuant to s.6AAA of the Sentencing Act 1991 I declare that but for your pleas of guilty I would have sentenced you to a total effective sentence of 8 years’ imprisonment with a non-parole period of 5 years’ imprisonment.
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HIS HONOUR: There was an application for a disposal order. I have signed three copies of that order and I hand that down.
MS CHAMPION: If Your Honour pleases.
HIS HONOUR: Are there any other matters that need to be attended to?
MS CHAMPION: No Your Honour.
MR WILLSON: No Your Honour.
HIS HONOUR: Remove the prisoner please. I will excuse counsel from the Bar table and thank you for your assistance. Would you call on the matter of Fortunato please.
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