Director of Public Prosecutions v Kendall
[2020] VCC 74
•24 January 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01340
Indictment No. K10911882
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BLAKE KENDALL |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 October and 18 December 2019 | |
DATE OF SENTENCE: | 24 January 2020 | |
CASE MAY BE CITED AS: | DPP v Kendall | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 74 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Sentence – Intentionally destroy property – Child stealing – Contravention of order intending to cause harm or fear – Aggravated burglary – Possession of a drug of dependence – Early pleas of guilty – Previously in a relationship with one of the victims – Child knew the offender was his father – One of the victims supported the offender in court – Support from family and friends – Drug addiction – High moral culpability – Demonstrated true contrition and remorse – 655 days’ imprisonment with a 3 year CCO
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Malobabic 30 October 2019 Ms A Aplin | Ms A Hogan, Acting Solicitor for Public Prosecutions |
| For the Accused | Ms C Gómez Vázquez | Victoria Legal Aid |
HIS HONOUR:
1 Blake Kendall, you have pleaded guilty to an indictment containing one charge of intentionally destroy property (Charge 1), one charge of contravention of order intending to cause harm or fear (Charge 2), one charge of child stealing (Charge 3), one charge of aggravated burglary (Charge 4) and one charge of possession of a drug of dependence (Charge 5).
2 You have also consented to have this Court deal with one transferred related summary offence of unlawful assault against your former domestic partner, Cathy Jones.[1]
[1] A pseudonym used to protect the identity of a victim of family violence.
3 The maximum penalty for intentionally destroy property is 10 years’ imprisonment. The maximum penalty for contravention of order intending to cause harm or fear is 5 years’ imprisonment. The maximum penalty for child stealing is 5 years’ imprisonment. The maximum penalty for aggravated burglary is 25 years’ imprisonment. The maximum penalty for possession of a drug of dependence, in the circumstances of this case, is 5 penalty units, as it is accepted by the DPP that the drug in question was a small quantity of cannabis which you possessed for personal use. The maximum penalty for unlawful assault under s 23 of the Summary Offences Act 1966 is 3 months’ imprisonment.
The facts
4 The prosecution filed an amended agreed summary of prosecution opening dated 9 October 2019, which as its title suggests I have been told by your counsel I can treat as a statement of agreed facts.
5 At the time committing these offences, you were 31 years of age. You had previously been in a relationship with one of the victims, Ms Jones, for approximately 10 years and together you have a six year old son, David.[2]
[2] A pseudonym used to protect the identity of a victim of family violence.
6 The relationship ended in early March 2019. On 28 March 2019 a Family Violence Intervention Order was issued against you in the Werribee Magistrates’ Court, which contained ‘full exclusion conditions’. Ms Jones and David were named as protected persons. The Intervention Order was served on you on 31 March 2019.
7 At the time of these offences Ms Jones and David were residing in crisis accommodation.
8 After the end of the relationship with you, Ms Jones continued her relationship with your mother, Dianne McKenzie.[3] There was also an Intervention Order in place whereby Ms McKenzie was the affected family member and you were the respondent.
[3] A pseudonym used to protect the identity of a victim of family violence.
Charge 1 – Intentionally destroy property
9 On 22 March 2019 at 12.28 pm you phoned Ms McKenzie and threatened her saying: ‘You are fucken dead’. Ms McKenzie hung up the phone. I note that there is no charge of making a threat to kill before me and you will not be punished for that offence. These facts are led as context evidence.
10 At 12.59 pm you attended Ms McKenzie’s residence in Taylors Lakes.[4] You can be seen on CCTV footage ripping out a CCTV camera which was fixed to the front door of the premises.
[4] The name of the suburb has been changed to protect the identity of a victim of family violence.
11 Ms McKenzie returned home at 1.25 pm and discovered that her garage roller door had been damaged, the clothesline was in pieces and the security camera was broken apart and lying on the ground. Ms McKenzie took photographs of the damage and immediately reported the matter to police. These facts comprise Charge 1 on the indictment, which is a rolled-up count.
Charge 2 – Contravention of order intending to cause harm or fear
Charge 3 – Child stealing
12 On 8 April 2019 Ms Jones had a meeting at her place of employment and had arranged for Ms McKenzie to look after David. After the meeting she returned to Ms McKenzie’s home. She and Ms McKenzie were in a bedroom and David was watching TV in a room near the rear of the house.
13 Around midday you attended Ms McKenzie’s home with your then girlfriend, Jayda Sharp. You had your face covered so as to disguise your appearance. I note that Ms Sharp has not been charged with any offences in relation to this incident.
14 You walked up the driveway of the home and kicked at pot plants next to the house. You slashed at Ms McKenzie’s parked car with a garden trowel. Several pots were destroyed and the vehicle suffered multiple scratches and dents. You also damaged a window, a front fly wire screen door and some furniture. Damage to these items of property forms part of Charge 1 on the indictment.
15 You then moved to the rear of the premises to a sliding door connecting the driveway to the house. After hearing a loud banging noise coming from the side of the house, Ms McKenzie saw David run to the rear sliding door and heard him shout, ‘dad’, whilst opening the door. You picked up David and ran down the driveway towards the road carrying David under your arm ‘like a football’. At this time your face was still covered, although I note that your son was aware that it was you who was carrying him.
16 You gave David to Ms Sharp who was waiting in the street outside the premises.
17 Ms Jones chased you and heard David crying and saying, ‘Help me mum’ as Ms Sharp was walking away with him. Ms Jones was screaming, ‘Give me my son back, he is scared.’ I am unaware as to whether Ms Sharp was previously known to David. As David ran back towards his mother, you grabbed him by the arm and said, ‘Come with daddy mate, it’s ok, daddy loves you.’ Ms Jones grabbed David by his other arm.
Related summary Charge 5 – Unlawful assault
18 You eventually let go of David and very forcefully pushed Ms Jones with one hand. She fell to the ground. At this time you were swearing at Ms Jones and you then pushed her to the shoulder. Ms Jones remained on the ground in a foetal position with David until you walked back towards your mother’s house.
Charge 4 – Aggravated burglary
19 After hearing Ms Jones scream, a neighbour came out of her home which was across the road from your mother’s premises. The neighbour saw Ms Jones and David hiding behind a car parked in your mother’s driveway and Ms Jones appeared visibly upset and was crying. The neighbour saw you walking towards them after seeing them near the car.
20 The neighbour told Ms Jones to run inside her house, whereupon Ms Jones fled to the neighbour’s home with David. You then crossed the road and you were heading into the driveway of the neighbour’s property when the neighbour tried to stop you from entering her house. She pushed against you and said, ‘This isn’t a good idea.’
21 Nonetheless, despite the neighbour’s entreaties, you proceeded up the driveway to the front door of her premises and damaged the lock. You then went inside her house and walked towards a locked bedroom where Ms Jones and David were hiding. The neighbour told you to leave the house. She said you were yelling and ‘carrying on’.
22 At this stage the neighbour called police and was told to stay put until they arrived. Shortly thereafter you left the premises leaving your jacket behind.
23 Approximately two minutes later you returned to the neighbour’s premises armed with a knife. This was described as a flick knife with a 10 centimetre blade. You went towards the front door but the door was now locked and you were unable to gain access to the house.
24 You left shortly after, kicking a bin over and knocking over a solar light in the garden. I note that there is no charge before me of you being in possession of a controlled weapon and you will not be punished for that offence. This evidence is led once again as context evidence.
25 The neighbour described you as wearing a bandana or mask that was pulled over your face. I have viewed photographs[5] which clearly show you wearing a black mask covering your face. The neighbour later told police that she was ‘petrified and scared for her life.’ She also felt sore to the left side where she fell over.
[5] Exhibit P2.
26 Police attended your address at 1.15 pm after receiving a report from police communications that you had called 000 and wanted to see police to report that your former partner had attended your address and assaulted you. Once again, I note that there is no charge of making a false report to police before me and this is simply led as context evidence.
Charge 5 – Possess drug of dependence
27 Upon entering your premises, police observed paraphernalia associated with cannabis smoking. Police seized a small container which had a small quantity of cannabis inside.
Arrest and interview
28 While at your home responding to your 000 call, Police received information that you were wanted in relation to an incident in Taylors Lakes. You were arrested and conveyed to the Werribee Police Station for interview.
29 During the course of the record of interview, you made the following admissions:
· ‘I went to do a drug screen this morning. I did some banking. I went to the bottle shop. After that I’ve gone home. Diane McKenzie came to the house, she’s been stalking me for two days to bait me to break the intervention order. I only was going there to speak with mum.’ (Qs 34, 42 & 46)
· ‘I didn’t know David was going to be there.’ (Qs 34 & 153)
· ‘I have seen my son, I broke down and gave him a hug and that was it. I wanted to leave with him, what father wouldn’t? But I gave him back to his mother. After I hugged him, I knew I was in trouble.’ (Qs 34, 69–71 & 91)
· ‘There was no assault on her, there’s no bruises on her. But I have bruises when they came and attacked me.’ (Q 34)
· ‘Yes, I made mistakes, I’m trying to change my life but mum, Cathy, all my family just keep fuckin’ with me and trying to bait me. I’m over it.’ (Q 34)
· ‘I’m doing drug screens to get my son back, I went down to the shops and I got him his Easter presents. I haven’t seen David for one month. Emotions go through your head. I would never hurt my son, I would never hurt Cathy.’ (Qs 52 & 128)
· ‘I smashed a few pot plants at mum’s house and a light pole out the front.’ (Qs 108 & 109)
· ‘The neighbours crossed the road to intervene cause’ they are mum’s friends. I went into the house as it was already open. Cathy was hiding in the room.’ (Qs 116, 169 &177)
· ‘Cause I seen my son was scared so I done a runner. I didn’t want him getting scared any more than what he was, but no one got hurt. I was there for 30 seconds. There was no weapons.’ (Qs 179–183)
Victim impact
30 No Victim Impact Statement has been filed in these proceedings. Nonetheless, a judge is entitled to take into account the likely consequences for any victim of the offending conduct to which they were subjected. It is quite clear to me that this was a terrifying incident for your former partner, your son, your mother and the neighbour.
31 However I do note that Ms Jones was present in court supporting you during the initial and further plea hearings and that through your counsel she has expressed the view that if imprisonment is imposed upon you as a result of your offending, she is concerned this would affect your relationship with your son.
32 The courts have said that in some circumstances evidence of forgiveness of a victim ‘should be treated with extreme caution[6] and the weight I should give to this consideration varies with the circumstances of the case.[7] However, I accept that a lengthy sentence of imprisonment is likely to have an adverse impact on your relationship with David and I take that into account in your favour.
[6] See eg R v Hester [2007] VSCA 298 [27] per Neave JA citing the comments of Simpson JA in R v Glen (unreported, NSW Court of Criminal Appeal, Grove and Simpson JJA and Loveday AJ, 19 December 1994) 4. See also Smith v The Queen [2010] VSCA 192 [8] (beach AJA, Nettle and Bongiorno JJA agreeing).
[7] See R v Skura [2004] VSCA 53; Cotter v The Queen [2011] VSCA 240 [48]–[49] (Nettle JA, Neave JA and Sifris AJA agreeing); R v MG (unreported, South Australian Court of Criminal Appeal, 4 October 2016, Blue, Nicholson and Hinton JJ) [133]–[140] (Hinton J).
Personal circumstances
33 You were born on 10 October 1988 in Werribee and were 30 years of age at the time of committing these offences and you are 31 years old at the time of sentence.
34 Your parents separated when you were about three years of age and you lived with your mother primarily in Werribee, although sometimes you did live with your father in Sydenham.
35 When you were 14 years of age your father moved to Queensland and you moved with him and resided with him for a number of years until you returned to Melbourne and commenced a relationship with Ms Jones. David, who is now aged six years, was born when you were 25 years of age. You had been in a 10-year relationship with Ms Jones which ended shortly before these offences were committed by you.
36 You are the eldest in a sibship of four. Your older half-sister, Brooke Ward, was present in court supporting you, as were a number of other family members and friends, including your father, your stepmother and Ms Jones.
37 Ms Ward gave evidence on your behalf to the effect that you are a ‘very good’ father to David. She said you admitted to her in February 2019 that you were using ‘Ice’ as a coping mechanism because things were not going well for you at work. At the time of giving her evidence Ms Ward had visited you six times whilst you have been on remand and she expressed the opinion that by your appearance and demeanour you appeared to be drug free whilst in custody.
38 Ms Ward said at your request she had passed on your apologies for your criminal conduct to Ms Jones and David. She expressed the view that this conduct was out of character for you, that she never expected you would behave in this manner and the only explanation for you conduct was you were acting under the influence of ‘Ice’ at the time.
39 Whilst this provides an explanation for your offending conduct, it is not a mitigating circumstance. However, I accept what Ms Ward has said about your general good character and I will take this into account in your favour.
40 Mr Cummins, a consulting clinical and forensic psychologist who prepared a report at the request of your legal representatives, summarised your schooling as follows: You attended Altona Green Primary School from Prep to midway through Grade 4, after which you attended Altona Meadows Primary School from Grade 4 to Grade 5. You then attended Monmia Primary School in Keilor Downs in Grade 6. Your secondary schooling was undertaken at Kensington Community College, where you remained until passing Year 10 at the age of sixteen. You then attended Taylors Lakes High School for 12 months and apparently at some stage, probably in Years 8 and 9, you attended Kensington High School in South Brisbane.
41 So far as your employment history is concerned, Mr Cummins summarised this as follows: You were first fully employed as a sandblaster for two years in 2004 to 2006 when you travelled from Queensland to live in Melbourne. You then returned to Queensland to again reside with your father and you initially worked as a fencer and then later as a storemen in a warehouse.
42 It was in Queensland that you met Ms Jones and you remained there for six years. Upon returning to Melbourne you worked in a cold storage warehouse in Laverton for two years and then with an air freight company for five years between 2013 to 2018, where you were employed as an air freight specialist. Your employment with the air freight company ended in June 2018 as a result of your dependency on methylamphetamine. You were then off work for approximately two months and subsequently obtained work as a scaffolder for approximately four months. You lost the scaffolding job about one week before Christmas 2018 and you have not worked since that time.
43 I have had regard to the report prepared by Mr Cummins dated 3 October 2019 and his supplementary psychological report dated 14 October 2019. Mr Cummins reported that you have received visits whilst in custody from your sister, Ms Brooke Ward, and your stepmother, Ms Debbra Kendall. You have a number of family members on your phone list including your sister, stepmother and your biological father. I was told that your half-sister has also visited you and been in daily contact with you. You also had some phone contact with your girlfriend at the time of this offending, Jayda Sharp, but you have now lost contact with her as a result of being in custody. Mr Cummins also confirms that you have had two phone calls with David whilst you have been in custody, which were organised by DHHS.
44 So far as your mental state is concerned, you were diagnosed as having ADHD at the age nine and were medicated on dexamphetamine when you were aged about 11 or 12. You remained on that medication until the age of fourteen. You told Mr Cummins that you had not seen your son for approximately two months before committing the offences on 8 April 2019. At that time you were feeling very depressed and you had some suicidal ideation.
45 So far as your drug use is concerned, Mr Cummins reported that you were a smoker prior to going into custody and were a social drinker of alcohol at weekends. You admitted to abusing dexamphetamine for about two years from the ages of 14 to 16, after you ceased having it prescribed. You started experimenting with cannabis at the age of 16 and shortly thereafter it became a daily habit. From the age of 16½ to 18 years, you typically smoked up to or in excess of 1 gram of cannabis daily. You stopped smoking cannabis because of the effects it was having on you. You then became a reasonably heavy social drinker of alcohol between the ages of 18 and 29.
46 It was at the surprisingly late age of 29, as a result of you associating with others drug users, that you started smoking methylamphetamine. You have never been an intravenous drug user. At the time of your arrest, you had been abusing methylamphetamine for about 18 months and your habit reached a level of approximately half a gram per day.
47 It was as a result of your increasing methylamphetamine abuse that your 10–year relationship with Ms Jones broke up. That was in early March 2019. On 13 March 2019, Child Protection became involved with family and the first offence committed by you was on 22 March 2019 (part of Charge 1).
48 Ms Jones obtained a Family Violence Intervention Order on 28 March 2019 protecting her and David, which was obtained at the Werribee Magistrates’ Court. This was served on you 31 March 2019.
49 The majority of the offending which is before me occurred on 8 April 2019, only eight days after you were served with the Intervention Order. Your application for bail on 17 May 2019 was refused at the Melbourne Magistrates’ Court and you have been in custody since your arrest on 8 April 2019. Accordingly, there are 291 days of pre‑sentence detention to be declared in this case.
50 So far as the present charges are concerned, you admitted to Mr Cummins that there was no excuse for your offending and that at the time of the offending you were heavily affected by methylamphetamine and under the influence of cannabis. However, I note this conflicts with what you told the CCO assessment officer; which was that you had ceased using ‘Ice’ in March 2019 and at the time of committing the offences on 8 April 2019 you were ‘heavily intoxicated by alcohol and cannabis and had not used ICE for approximately one month prior to this date’.[8]
[8] See Exhibit C1.
51 Apparently Ms Jones is seeking to have the current Intervention Order varied so that you can have contact with David, as he is having difficulty at school because he suffers from ADHD. Your mother is also seeking to have the Intervention Order, which is in place protecting her, varied so that she can have contact with you whilst you are in custody.
52 So far as your present situation is concerned, I was provided with clear urine samples for 28 September 2019 and 8 October 2019.[9] I accept that whilst you have been in custody you have been drug-free. You told Mr Cummins that you are now ‘100% committed to staying off the drugs’.
[9] Exhibit D7.
53 Whilst in custody you have undertaken a number of programs including the ‘Remand Coping Inside Program’ and the ‘Ice and Me’, ‘Alcohol and Me’ and ‘Cannabis and Me’ programs.[10] Since 8 November 2019 you have been working six hours per day, Monday to Friday, in the prison powder coating facility. All of these efforts on your part are to be commended and auger well for your ultimate prospects of rehabilitation.
[10] See Exhibit D6.
54 Mr Cummins assessed you as being a moderate risk of committing a further offence involving violence. He said that this indicated that it is necessary for you to complete a comprehensive anger management program such as the Violence Intensive Program. Mr Cummins opined that at interview he formed the view that you were ‘genuinely apologetic, regretful and remorseful concerning [your] offending’.
55 So far as his mental state examination of you is concerned, Mr Cummins opined that you do not present as being psychotic or schizophrenic and that there is no suggestion from your history that you have ever been suffering from these conditions. You did not present as having an Antisocial Personality Disorder or an antisocial personality style or anti-authoritarian attitude. He opined that you did not present as having any personality disorder or as having adult ADHD. You did present as being mildly to moderately depressed and mildly anxious, but this is no doubt reactive to the situation in which you currently find yourself. Accordingly, your counsel accepted that no Verdins principles are engaged in your case.
56 Whilst not diagnosing you as suffering from any mental health condition, Mr Cummins did opine that you would benefit from ‘mental health treatment to assist [you] to better understand [your] conflictual relationship with [your] mother’. Mr Cummins identified the ‘primary risk factor’ for you is ‘whether or not [you] can remain off methylamphetamine on a long term basis when [you] return to reside in the community’.
57 So far as your prior criminal history is concerned, you first appeared at the Sunshine Children’s Court on 10 April 2012 charged with intentionally destroying property; theft from a shop; fail to answer bail (two charges); intentionally damage property (three charges); and theft (two charges). You were fined an aggregate of $300 without conviction.
58 You were next before a court more than four years later when you appeared in the Werribee Magistrates’ Court on 9 November 2016 charged with unlawful assault. I was told by your counsel this related to an assault by you on a friend during an argument regarding his failure to pay board, in which you struck him once. You received an adjourned bond without conviction for 12 months.
59 The final past offending was dealt with at the Werribee Magistrates’ Court on 8 August 2018, when you were before the court on charges of theft from a motor vehicle, committing an indictable offence whilst on bail, and drive whilst authorisation suspended. On that occasion you were fined an aggregate of $700 without conviction.
60 Accordingly, you have no prior convictions, but you do have a number of findings of guilt; including four for offences involving property damage and four dishonesty offences. I note that you have no prior offences involving family violence or assaults on women. Accordingly, while not irrelevant for sentencing purposes, I do not consider that your prior criminal history is particularly relevant to my task in sentencing you for the present offences.
61 I was also told by your counsel that you have no subsequent offences and that there are no pending or outstanding matters.
62 Whilst you do not fall to be sentenced as a first offender or a person of otherwise prior good character, nonetheless it is clear that the offending before the court in this case represents a significant escalation in your past conduct. It was no doubt situational and brought about by your abuse of methylamphetamine and cannabis and by anger towards your former partner and your mother in the context of separation from your son.
63 So far as your time in custody is concerned, I have had regard to an affidavit of Jennifer Ann Hosking sworn 17 December 2019.[11] Ms Hosking is the Assistant Commissioner, Sentence Management Division, Corrections Victoria, Department of Justice and Community Safety. Upon reception you were initially classified a medium security prisoner at Fulham Correctional Centre. You were then transferred to Port Phillip Prison where you indicated concerns for your safety. You were then transferred back to Fulham. At one stage following your return from court on 17 May 2019, a psychiatric nurse assessed you as having a significant risk of suicide or self-harm. As a result you were placed in a Muirhead cell for two days.
[11]Exhibit D5
64 On 29 August 2019, as a result of an incident in which you were physically involved with another prisoner, you were separated into the Buller Unit where you remained until 9 September 2019, when you were transferred to the Metropolitan Remand Centre and placed in a mainstream unit.
65 As a result of another incident on 16 September 2019, you were again separated from the mainstream prisoners and ultimately transferred to Ravenhall Correctional Centre on 23 September 2019, where you were placed in a mainstream unit.
66 Having read Ms Hosking’s affidavit, whilst it seems that you have had some difficulties settling into prison life, in my view they are not serious enough as to constitute any form of custodial hardship which would warrant mitigation in your case on that account.
67 I have also had regard to the letter from Jade Fisher, Child Protection Practitioner, Case Management Team 3, in the Western Metropolitan Area of the Department of Health and Human Services dated 24 October 2019.[12] This letter states David is currently the subject of a Family Preservation Order which was due to expire on 9 January 2020. The Family Preservation Order contains specific conditions relating to you which include you:
(1) engaging in a men’s behaviour change program;
(2) attending a psychologist/psychiatrist for assessment and treatment;
(3) engaging with assessment and treatment for alcohol and drug dependence; and
(4) submitting to random supervised alcohol and drug testing.
[12]Exhibit D3
68 Moreover, under the conditions of the order, your contact with David must be fully supervised by a Child Protection worker or other suitable person. The letter also confirms that the Family Violence Intervention Order has been varied to allow David to have contact with you. You have been having 30 minute weekly phone calls with David since 2 September 2019. The letter notes that feedback from Ms Jones and your son’s school is that since these phone calls commenced David’s overall behaviour has improved.
69 Both David and Ms Jones have been consistent in stating that they want David to continue to have contact with you and Ms Jones is very supportive of this occurring. Moreover, on 15 October 2019, which was David’s birthday, you and he had face-to-face contact under supervision. Apparently this contact was ‘very positive for both parties’. David was able to spend two hours with you before having to leave the prison. Ms Jones reported that David responded well to having this contact with you and that his behaviour at home was calmer than usual as a result.
70 I have also had regard to a number of character references which were tendered on your behalf. These are from:
(1) Brooke Ward dated 2 October 2019;
(2) Debbra Kendall dated 7 October 2019;
(3) Stephen Garcia dated 3 October 2019; and
(4) Stephanie Ballantyne dated 23 September 2019. [13]
[13] Exhibit D4.
71 Ms Ward is your sister and speaks of the level of your remorse and victim empathy. I accept Ms Brooke Ward’s comment that the present offending ‘is completely out of character for Blake’ and that you are a ‘hard worker’ and have always worked to support your family. I have previously summarised her viva voce evidence in support of you.
72 Ms Kendall is your father’s wife and therefore your stepmother. She also attests to your good character and work ethic. She expresses the opinion that the current offending is ‘out of character’ for you and she also attests to your significant level of remorse. Apparently, she is agreeable to you residing at her home upon your release from custody.
73 Mr Garcia is your brother-in-law and also your former employer. He has known you since you were 12 years old and employed you for a three year period between 2015 to 2018. Mr Garcia is of the opinion that you are hardworking and that the present offending is out of character for you. Mr Garcia also is of the view that you are genuinely remorseful for your actions in committing the present offences.
74 Finally, Ms Ballantyne, who is a friend of your sister, Brooke Ward, has known you both professionally and socially for a number of years. She describes you as being a ‘reliable and honest person of a hard working character’. You have always displayed a ‘high sense of responsibility’ and she respected you for your work ethic, which view was shared by her colleagues and your workmates. She expresses the view that with the support mechanisms you have in place, you are able to move forward and lead a productive life in the community.
75 I take all these matters into account in your favour. Specifically I am of the opinion that the current offending is out of character for you and that you are a hard working person, who was a good family man until the separation from your long term partner. I accept that you have a deep and loving relationship with your son, David.
76 In my opinion a number of circumstances, including the effect of that separation on you and your inability to cope, and your turning to methylamphetamine abuse as a coping mechanism to deal with work stresses, has led to your present predicament. I am also satisfied from both Mr Cummins’ report, Ms Ward’s evidence and the four written character references that you are genuinely remorseful for the offending.
Offence seriousness
77 Aggravated burglary is a very serious criminal offence as indicated by the maximum penalty 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This shows, unambiguously, how seriously the community, through the Parliament, views the conduct you have committed in charge 4.[14] Moreover, I consider this to be a relatively serious example of the offence. Attempting to re-enter your mother’s neighbour’s home, whilst armed with a flick knife with a 10 centimetre blade, although not the subject of a separate charge, shows how serious your behaviour on this ocassion had become. There was the potential for an escalation of events resulting in very serious offending indeed.
[14] Djordjic v The Queen [2018] VSCA 227 [68].
78 Child stealing is also a serious criminal offence, although I accept yours is a less serious example than many others that come before this court.
79 A very concerning aspect of the overall offending is that it occurred against a background of domestic violence in part directed against your former partner, Ms Jones, who at the time was ‘protected’ by a Family Violence Intervention Order which you breached.
80 Domestic violence perpetrated mostly by men against their current or former female domestic partners is an appalling blight on our society. As the Victorian Royal Commission into Family Violence observed:
Family violence can cause terrible physical and psychological harm, particularly to women and children. It destroys families and undermines communities.[15]
[15]Victoria, Royal Commission into Family Violence: Summary and Recommendations (2016) 1.
81 The Royal Commission was established in February 2015 as a consequence of the Victorian Government’s ‘recognition of the harm family violence causes, and of the need to invest in family violence reforms to assure the future wellbeing and prosperity of all Victorians’.[16] In announcing the Government’s intention to establish the Royal Commission, the Premier declared that family violence was ‘the most urgent law and order emergency occurring in our state and the most unspeakable crime unfolding across our nation’.[17] In the ‘Summary’ to its Final Report the Royal Commission observed:
The establishment of the Royal Commission is an acknowledgement of the seriousness with which the Victorian community has come to regard family violence and its consequences for individuals and families—it reflects our growing awareness of its scale, a recognition that existing policy responses have been insufficient to reduce the prevalence and severity of the violence, and the priority the community is prepared to accord it in order to address the problem.[18]
[16]Id.
[17]Id.
[18] Id.
82 The Victorian Court of Appeal has also expressed its concern with the growing scale of this scourge on our society and has emphasised the importance of general deterrence, denunciation and just punishment. The Court has made ‘repeated statements that sentences imposed for family violence should be set at a level which will send a message to those — predominantly men — who might offend violently against domestic partners or former partners or family members.’[19]
[19] Uzun v The Queen [2015] VSCA 292 [48] (Maxwell P), [39] (Priest JA). See generally Pasinis v The Queen [2014] VSCA 97 [53], [57] (Neave and Kyrou JJA); Filiz v The Queen [2014] VSCA 212, [21], [23] (Maxwell P and Redlich JA); DPP v Meyers [2014] VSCA 314, [45]–[46] (Maxwell P, Redlich and Osborn JJA); Marrah v The Queen [2014] VSCA 119, [25] (Redlich and Tate JJA); Kalala v The Queen [2017] VSCA 223 [55]–[63] (Maxwell P and Redlich JA).
83 Recently in Kalala v The Queen[20] the Court of Appeal, referring to Filiz v R, said that the Court acknowledged the ‘shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44.’ In Kalala Osborne JA said:
[T]he prevalence of family violence and the seriousness of its consequences on the one hand, and the need for condign punishment to denounce and deter it on the other hand, are considerations which current understanding would emphasise as being of fundamental importance in cases such as the present.[21]
[20] (2017) 269 A Crim R 1, 18 [59] (Maxwell P and Redlich JA) (citations omitted).
[21] Ibid 25 [95].
84 In DPP v Smeaton[22] Dodds-Streeton JA observed that:
[22] [2007] VSCA 256.
Violence, and in particular violence by men against women as a means of control in current relationships or in relationships which have ended, is a prevalent and even critical social evil. As in the present case, the perpetrator not uncommonly expresses remorse immediately after a violent assault.[23]
Her Honour expressed the view that sentences must
sufficiently express the deep abhorrence excited by a violent and brutal physical assault by an adult male on a slight young woman, which is in no degree abated by the fact of a prior relationship between the victim and the perpetrator.[24]
[23]Ibid [21].
[24]Ibid [22].
85 Mr Kendal, your offending was violent, somewhat protracted, and cowardly. It was committed against two women whom you professed to love and another innocent female, who became involved in the incident by assisting your former partner and son to escape your offending behaviour. Your mother and former partner were entitled to your protection and not property damage, and violence at your hands. The offending involved a gross breach of trust.
86 Moreover, much of it was committed in the presence of your young son, who was himself a victim of one of your crimes. I do accept from what you told the community corrections officer during your assessment[25] that you made a spontaneous decision to take custody of David on the spur of the moment, and that you were not expecting Ms Jones or David to be present at you mother’s home when you attended there on 8 April 2019.
[25] See Exhibit C1.
87 Nonetheless, overall I consider your moral culpability is high. Clearly, general deterrence and denunciation must be given significant weight in sentencing you for these offences.
88 Your counsel rightly conceded that ‘the offending amounts to a serious act of family violence and the impact on the victims would have been significant’.[26]
Mitigating circumstances
[26] See Defence Outline of submissions dated 23 October 2019 (Exhibit D1) [7].
89 You pleaded guilty to these offences at an early stage in the proceedings. I accept that your pleas have utilitarian benefit and spared the victims from the need to give evidence and be cross-examined. You pleas also indicate an acceptance by you of responsibility for your offending conduct and a willingness to facilitate the course of justice.
90 I also accept you regret the effect your offending conduct has had on your former partner, your son, your mother and her neighbour. Moreover, I sentence you on the basis that you demonstrate true contrition and remorse for committing these offences.
91 I find you have good prospects of rehabilitation provided you remain drug free upon your release from custody. In this regard I note the protective measures you have in place, with strong family support and the ability to live with your mother on your release from prison. You have also well applied yourself while in custody on remand for these offences by working and undertaking programs and vocational courses.
92 I accept that this offending is out of character for you and was situationally based. You appear to have gained a degree of insight into the causes of your offending conduct and have expressed a desire to undergo future rehabilitative programs designed to address your behavioural problems and your drug addiction.
93 While noting that this is your first time in custody, your counsel submitted that all relevant sentencing purposes could be best served by imposing a community correction order, with ‘onerous and carefully structured’ therapeutic components in addition to imposing a sentence of imprisonment (a ‘combined sentence’).[27] She submitted such a disposition would ‘afford the best prospects for [your] rehabilitation’.
[27] Pursuant to Sentencing Act 1991 s 44.
94 The prosecutor submitted that this was ‘very serious offending’ that was ‘protracted’. The aggravated burglary was committed in the context of family violence and in breach of a family violence intervention order. You were wearing a disguise at the time and DHHS has concerns regarding the effect your offending has had on David.
95 The prosecutor further submitted that general deterrence had to be given ‘significant weight’ and that a combination sentence was not open to me in the circumstances of this case because of the objective seriousness of your offences and your personal circumstances.
96 Without forming any concluded view, and despite the attitude of the Crown, I had you assessed for suitability for a community correction order and I received an Extended Pre-Sentence Assessment – Outcome Report dated 7 November 2019.[28] This was provided to the parties and was the subject of submissions at a further plea hearing on 18 December 2019. Ms Jones and your father were present in court supporting you on that ocassion.
[28] Exhibit C1.
97 I have had regard to the submissions made at that hearing. It is fair to say that despite what was put on your behalf during the plea and further plea hearings, and the contents of the Extended Pre-sentence Assessment report, the Director’s attitude to what is an appropriate sentence in this case has not charged.
98 You were assessed as a high risk of general re-offending in accordance with the Level of Service-Risk, Need, Responsivity tool. This means I must give some weight to specific deterrence and protection of the community in sentencing you.
99 The community correction assessment officer concluded:
Although Mr Kendall has been assessed as a high-risk of general re-offending in accordance to the Level of Service - Risk, Need, Responsivity tool, this service is able to provide interventions through numerous conditions to reduce Mr Kendall's risk of re-offending. In consideration of the therapeutic opportunities that a community-based disposition can provide, Mr Kendall has been deemed a suitable candidate for a CCO.
A number of program and therapeutic conditions were recommended.
Application of sentencing principles
100 I have had regard to current sentencing practice in relation to the offences before me in light of the decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym).[29] It is difficult to gauge more than a very general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct which can constitute these offences and the myriad personal circumstances pertaining to individual offenders.[30] Nonetheless, to the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.
[29] DPP v Dalgliesh(a Pseudonym) (2017) 262 CLR 428.
[30] See eg Tognolini v The Queen (2011) 32 VR 104.
101 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of factors, such as the seriousness of your offences, your culpability for them and your personal circumstances
102 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.
103 As your counsel recognised these are serious offences and general deterrence and denunciation are very important sentencing considerations in this case, particularly in relation to the aggravated burglary, child stealing and the unlawful assault on your former domestic partner, Ms Jones.
104 Whilst just punishment, general deterrence and denunciation must be given primary consideration in my instinctive synthesis in your case, I am of the view that specific deterrence and protection of the community need be given some, albeit not great, weight. Moreover, I accept your counsel’s submission that, on balance, you have good prospects of rehabilitation if you can remain drug free upon your release from custody.
105 After much anxious consideration I have concluded that the purposes for which these sentences are imposed (other than Charge 5 – possession of a drug of dependence) can be best accommodated by a combination sentence which will involve you remaining in custody for a further twelve months and then being released on a three year CCO with a number of conditions.
Stand up Mr Kendall
On Charge 1 (destroying property) you are convicted and sentenced to imprisonment for 60 days.
On Charge 2 (contravention of order intending to cause harm or fear for safety) you are convicted and sentenced to imprisonment for 120 days.
On Charge 3 (child stealing) you are convicted and sentenced to imprisonment for 200 days.
On Charge 4 (aggravated burglary) you are convicted and sentenced to imprisonment for 450 days.
On Charge 5 (possession of a drug of dependence) you are convicted and fined $500. I direct that fine be referred to Fines Victoria for collection.
On transferred related summary charge 5 (unlawful assault) you are convicted and sentenced to imprisonment for 30 days.
I direct that 30 days of the sentence on charge 1, 60 days of the sentence on charge 2, 100 days of the sentence on charge 3 and 15 days of the sentence on the related summary charge 5 be served cumulatively on the sentence imposed on charge 4 and on each other. This makes a total effective sentence of 655 days’ imprisonment.
I declare 291 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made and its details be noted in the records of the court.
As the unserved portion of the sentence I have imposed on you is less than twelve months’ imprisonment,[31] I further order pursuant to s 44 of the Sentencing Act 1991 that upon your release from custody you serve a community correction order for a period of three years with the following conditions:
[31] There are 364 days left to serve.
S 48C 600 hours of unpaid community work.
S 48CA I determine that all of the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
S 48E Supervision for three years.
S 48D(3)(a) Assessment and treatment (including testing) for drug abuse or dependency.
S 48D(3)(b) Assessment and treatment (including testing) for alcohol abuse.
S 48D(3)(e) Mental health assessment and treatment.
S 48D(3)(f) Programs that address offending behaviours.
S 48K(1) Judicial monitoring, you must appear before me on Friday, 23 July 2021 at 9.30 am.
S 48 Residual condition: you are not to consume any drugs of dependence for the duration of the order except on the advice of a registered medical practitioner.
Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you but for your pleas of guilty would have been a total effective sentence of 3 years’ imprisonment with a non-parole period of 2 years’ imprisonment on indictment charges 1, 2, 3 and 4 and related summary charge 5 and with conviction fined $750 on indictment charge 5.
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