Director of Public Prosecutions v Kennedy
[2024] VCC 2093
•16 December 2024.
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00479; CR-24-00471
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PARIS KENNEDY and |
CATHERINE COLIVAS
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JUDGE: | Karapanagiotidis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 August 2024; 5 December 2024. | |
DATE OF SENTENCE: | 16 December 2024. | |
CASE MAY BE CITED AS: | DPP v Kennedy & Anor | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2093 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentencing
Catchwords: burglary – theft – kidnapping – extortion with threat to inflict injury – s.5(2H) Sentencing Act youthful offenders –plea of guilty– Verdins – Bugmy
Legislation Cited: ss 5(1), 6AAA Sentencing Act 1991 (Vic)
Cases Cited:Nguyen v The Queen (2010) 208 A Crim R 464; Farmer v The Queen [2020] VSCA 140; Lombardo v The Queen [2022] VSCA 204; Fariah v The Queen [2021] VSCA 213; R v Verdins [2007] VSCA 102; Bugmy v The Queen [2013] HCA 37; Boulton v The Queen [2014] VSCA 342.
Sentence: Kennedy: Convicted and released on an adjourned undertaking.
Colivas: Community corrections order for 30 months, forfeiture order, convicted and fined $300.00.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Foot | Office of Public Prosecutions |
| For the Accused Kennedy For the Accused Colivas | Ms P. Marcou Ms K. Ballard | Garde Wilson Lawyers LACW |
HER HONOUR:
1Catherine Colivas, you have pleaded guilty to the following charges: kidnapping, extortion with threat to inflict injury (rolled-up charge), recklessly causing injury, burglary, theft and possessing a longarm.
2Paris Kennedy, you have pleaded guilty to a charge of burglary and theft. You have also agreed to this court hearing and entered a plea of guilty to one charge of deal with proceeds of crime.
Circumstances of the offending
3The full circumstances of your offending Ms Colivas are outlined in the prosecution opening, marked as Exhibit A, and dated 1 August 2024. The opening in your matter Ms Kennedy is also marked as a separate exhibit and dated 3 December 2024. In the summary of the offending which is to follow, paragraphs [18] and [19] only are relevant to the offences you have pleaded guilty to Ms Kennedy.
4At the time of your offending, you Ms Colivas were 22 years of age and you Ms Kennedy were 20 years old.
5The victim of your offending is Sultan Prince Mushkala (previously known as Ismail Ali Turki), he was 23 years of age at the time.
6On Sunday 26 February 2023 you Ms Colivas, using the name ‘Anastasia’, made contact with Mr Mushkala via a dating application. In subsequent chats you agreed to meet on the evening of 28 February 2023. At approximately 9:30PM you met at a bar in Highett. You drank together and then agreed to get a meal at a restaurant in Cheltenham. You both drove there in Mr Mushkala’s vehicle, a white 2016 Landrover sports wagon. During your time together Mr Mushkala disclosed that he sells Rolex watches and invests in crypto currency.
7After finishing your meal, you went to the bathroom again and at approximately 10:50PM you both left the restaurant. He drove you to what you told him was your address on Le Page Street Moorabbin. He offered to walk you to your door and at approximately 11:00PM as you were both walking across the road three males came running from the direction of a laneway at the northern end of the Street. The males assaulted Mr Mushkala by punching and strangling him before dragging him along the ground to a waiting car. This was captured on CCTV[1] (Charge 3 - recklessly cause injury).
[1] Exhibit 7 & 8.
8Mr Mushkala was forced into the car being driven by one of the men. The other men got into the front passenger seat and the back seat. The vehicle was a 2016/2017 silver VW hatch GTI. Mr Mushkala had his hands tied with black cable ties. All three males threatened to kill Mr Mushkala and cut his fingers off. Mr Mushkala was driven to an industrial area approximately five minutes from Le Page Street. (Charge 1 - kidnapping).
9One of the men held a knife to Mr Mushkala's face while the males demanded $20,000. Mr Mushkala stated he did not have that kind of money. It was then agreed to transfer funds by bitcoin via a friend of Mr Mushkala's. (Charge 2 - extortion).
10At this point, Mr Mushkala realised he had dropped his Apple iPhone during the struggle back in Le Page Street. He required this phone to conduct the transfer. Male one made contact via phone to Ms Colivas. I note that the reference here in the summary includes Ms Kennedy but that this is not what is alleged against Ms Kennedy in her opening. To be clear, as far as Ms Kennedy is concerned I proceed on the basis of her accepted summary of offending.
11Whilst in the car the male offenders demanded Mr Mushkala's apartment keys (which were left in his vehicle parked in Le Page Street).
12At 11:10PM you Ms Colivas attended outside the Le Page Street, Moorabbin address, in Ms Kennedy's vehicle, an orange Hyundai Veloster hatch.
13Ms Colivas you got out of the front passenger seat and entered Mr Mushkala's car via the driver door. You located Mr Mushkala's apartment keys in the front drink holder. You crossed the road and using the torch on your phone, you picked up Mr Mushkala's phone and bank cards. This was captured on CCTV.[2]
[2] Exhibit 7.
14You Ms Colivas attended the location where Mr Mushkala was held. You handed Mr Mushkala’s phone to one of the men, who got out of the car and then returned to the car with Mr Mushkala's phone a short time later. The male then drove to an unknown location approximately five to ten minutes away, parking in a residential street.
15Mr Mushkala contacted his friend, Abdi Shakaur who resides in the United Kingdom via Snap chat. Mr Mushkala informed Mr Shakaur that he was in trouble and needed help. Mr Shakaur agreed to assist Mr Mushkala and transferred $15,000.00 in bitcoin to Mr Mushkala.
16At 11:45pm Mr Mushkala transferred $15,000.00 in bitcoin to a Binance address, which is an account held in the name of Davis.
17One of the men messaged Davis and confirmed the funds had been transferred. He then got out of the car and grabbed the knife from one of the other men and put it to Mr Mushkala's face, demanding a further $10,000.00. Mr Mushkala stated Mr Shakaur had given them everything he had. One of the men contacted Mr Shakaur on Snap chat and threatened him. Mr Shakaur agreed to forward a further $5,000.00 in bitcoin if they let Mr Mushkala go.
18At 11:53PM you Ms Kennedy and Ms Colivas attended at St Kilda Road, Melbourne in Ms Kennedy's vehicle. You entered the underground carpark, got in the lift, before entering Mr Mushkala's apartment on Level 3. You stole designer clothing, backpack and shoes, PlayStation 5 and five iPhones. (Charge 4 - Burglary & Charge 5 -theft).
19A short time later, you both left his apartment carrying a black garbage bag and white bin liner containing goods, and a Louis Vuitton backpack. This was captured on CCTV.[3]
[3] Exhibit 14 and 15.
20On 1 March 2023, at approximately 1:30AM you Ms Colivas arrived at the location where Mr Mushkala was being held. He was handed Ms Kennedy's mobile phone. Mr Mushkala transferred $5,000 in bitcoin to a Binance address which is an account held in the name of Ms Kennedy.
21Mr Mushkala was handed back his car and apartment keys. The male offenders then left this location in the silver VW hatch with Mr Mushkala in the rear. Once released Mr Mushkala was instructed to look at the telegraph pole in the street until the men had driven away. This was captured on CCTV[4] .
[4] Exhibit 7.
22Mr Mushkala got into his car and googled the closest police station. At approximately 2:00AM he arrived at the Moorabbin Police Station, where he collapsed on the floor. He reported the incident to police and photographs were taken of his injuries.
23A short time later he was was transported by Ambulance to the Alfred hospital where he was treated for dizziness, right eyebrow bruising and haematoma, left parietal (skull/side of head) bruising and haematoma, significant grazing to right hip and upper thigh, red marks on wrists from zip ties, redness around the front of his neck and redness to anterior of neck where the knife was held[5]. (Charge 3 - recklessly cause injury).
[5] Exhibit 24.
24At 3:54AM you Ms Kennedy were intercepted by police travelling north along Nepean Highway, Brighton, in an orange Hyundai Veloster.
25On 1 March 2023 at approximately 3:00PM Mr Mushkala returned to his apartment at 301/450 St Kilda Road, Melbourne after he was discharged from Alfred hospital. Police met Mushkala at his apartment, where he identified that a suitcase in his bedroom had been rummaged through and items, as outlined in the prosecution openings, as stolen.
26Phone records reveal communication between Kennedy, Davis, Colivas and the 'Anastasia' phones during the course of the evening of 28 February 2023 and into the early hours of 1 March 2023.
Search warrants, arrest and interview
27On 29 March a search was conducted of both of your residence. The items seized from your residence Ms Colivas are outlined in the opening and include an air rifle (Charge 6 - Non-prohibited person possess unprescribed longarm).
28The items seized from the search of your address Ms Kennedy are also outlined in the prosecution opening.
29Ms Colivas you were arrested and interviewed by police. The answers you gave were a mixture of 'no comment' and that you could not recall what had happened. You said the air rifle you found under your bed previously belonged to your grandfather and you have never used it. After your arrest, you spent one night and two days in the police cells. Ms Kennedy you were interviewed by the police and made no comment. You spent 90 days on remand before being released on bail.
Victim impact
30Mr Mushkala provided a victim impact statement in which he details the profound impact of the offending on many different aspects of his life. He refers to suffering major depression due to financial loss. ‘Heavy PTSD and nightmares as well as flashbacks into the event and thought about things I could of done differently.’ It has also undermined his sense of trust, safety and stability and caused him material loss. He states, ‘my life has drastically changed after the events of this crime. Every time I go out I keep being reminded how a peaceful night out turned to [be] one of my most horrific experiences of my life.’
31I take into account the impact of the offending on Mr Mushkala. In your case Ms Kennedy, I indicate that I have taken a cautious and pragmatic approach in this assessment, as urged by your Counsel, given your offending is confined to the burglary and theft charges.
Gravity of offending
32The offending in your case Ms Colivas is serious, as reflected in the maximum penalties.
33Kidnapping is a very serious criminal offence as indicated by the maximum penalty. This ‘shows unambiguously how seriously the community, through the Parliament, views this conduct’[6] . It is also a category 2 offence under the Sentencing Act. Therefore, s.5(2H) of the Act applies. The Court must impose a custodial order for a Category 2 offence, unless an exception applies.
[6] Nguyen v The Queen (2010) 208 A Crim R 464.
34Your offending clearly involved a degree of planning. Your role was to act as a lure or bait for the victim. By your plea, you accept that you were at least aware of what was to occur. The circumstances of the kidnapping were intimidating, involving as they did being forced into the car and having his hands tied with black cable ties. I take into account that it was a terrifying ordeal for Mr Mushkala and commenced at approximately 11:00pm until sometime after 1:30am. I also take into account the nature of his injuries, the subject of charge 3, and as outlined in the prosecution opening.
35During the course of the offending, you in fact returned to the scene and then later entered Mr Mushkala’s apartment, along with Ms Kennedy, and stole his personal belongings. I accept, as submitted by the prosecution, that you played a crucial role in the offending and that, on the face of it, your moral culpability is high.
36Your Counsel accepts that your offending is grave but submits that there is no evidence to suggest that you received any financial reward or gain yourself for your involvement. Also, while complicit, you were not present for all of the offending. She also refers to your youth at the time and your precarious mental health, which impacts your culpability and an assessment of your offending, which I will return to shortly.
37In terms of the air rifle, your counsel submits that you were living in the home owned by your grandparents. The rifle was a relic of your grandfathers which had been left there for some time. Certainly, there is no evidence that you had used it or attempted to use it in any way or that it was connected with any offending.
38As for your offending Ms Kennedy, it is more limited to Ms Colivas and as all Counsel agree parity has very little role to play in this case. While your offending is serious, involving a significant intrusion into the home and entitlements of Mr Mushkala, I do accept your counsel submission that your offending ‘is not of the highest order of gravity.’
Mandatory provisions
39Pursuant to s.5(2H)(e) your Counsel submits that there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3.
40The prosecution submit that the factors relied upon do not meet the exception pursuant to s.5(2H)(e) and that overall nature and the gravity of the offending calls for an immediate term of imprisonment to be imposed.
41Given the centrality of this provision in your case, Ms Colivas it is appropriate to address this issue at the outset and your case first. I will then deal with Ms Kennedy separately.
42The scope and operation of s.5(2H)(e) is outlined in s.5(2HC) which provides as follows:
In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court –
(a) must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1); and
(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c) must not have regard to-
(i) the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or
(ii) an early guilty plea; or
(iii) prospects of rehabilitation; or
(iv) parity with other sentences.
43In addition, subsection (2I) provides that in determining whether there are substantial and compelling circumstances the court must have regard to:
(a) the Parliament’s intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) should ordinarily be made; and
(b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
44Subject to these provisions, a Court must not impose a sentence that is more severe than what is necessary to achieve sentencing purposes and must not impose a sentence that involves the confinement of the offender unless it considers that the purpose of sentence cannot be alternatively achieved (see (2HC)(3) and (4)).
45The Court of Appeal has also offered guidance in the application of this provision. In Farmer v The Queen the court described s5(2H)(e) as a very high hurdle that will not often be surmounted[7]. The legislative norm is that Category 2 offences will attract an immediate term of imprisonment. In Lombardo v The Queen the court stated that it is apparent that the enquiry under (2H)(e) has two key steps[8]. First, the court must identify whether there are substantial and compelling circumstances, that is circumstances that are weighty and forceful and powerful, issues whether the circumstances are substantial and compelling so as to justify not imposing a custodial sentence.
[7] Farmer v The Queen [2020] VSCA 140.
[8] Lombardo v The Queen [2022] VSCA 204.
46The second critical step, if the circumstances are substantial and compelling, asks whether they are also exceptional and rare. This is to be regarded as a composite phrase, 'It is a threshold which must be met before it is open to impose a non-custodial sentence'. Properly understood it refers to circumstances that are wholly outside the ordinary factors typical of the relevant offence.
47Applying the two steps to the mandated analysis calls for the sentencing judge to make an evaluative judgment once the underlying facts have been established and unaffected by notions of burden of proof. It is possible that a set of circumstances may engage the exception in combination even when the constituent circumstances are mainly, or even wholly, relevantly common.
48In the case of Fariah v The Queen the Court stated at [25][9]:
'We also consider that the mere fact that some individual circumstances may commonly be encountered by sentencing judges in the County Court will not by that fact alone necessarily deprive them of their character if substantial and compelling and exceptional and rare. Every case will necessarily depend on its particular facts. Circumstances which individually are relatively common may in combination enliven the exception …’
[9] Fariah v The Queen [2021] VSCA 213 [25].
49Within the bounds of reasonableness whether an applicant’s circumstances meet the threshold requirement of s.5(2H)(e) is ultimately for the sentencing judge to determine and evaluate.
50In summary, your counsel submits that the cumulative effect of the following matters amounts to substantial and compelling circumstances that are exceptional and rare:
(a) Your plea of guilty and the facilitation of justice
(b) Your young age
(c) The absence of a criminal history.
(d) Your personal circumstances, which include exposure to violence and abuse during your childhood, sexual assaults and substance abuse.
(e) Your precarious and fragile mental health, its impact on your offending and the likelihood that it will cause any term of imprisonment to be more burdensome.
(f) Demonstrated achieved reformation
(g) The recent loss and grief experienced arising from the death of your younger brother.
Plea of guilty
51Your matter resolved as a plea of guilty on 27 March 2024. Your plea of guilty was made at the first reasonable opportunity. Under these provisions I am not entitled to have regard to the early nature of your plea.
52I do take into account that your plea represents an acceptance of responsibility on your part and a willingness to facilitate the course of justice. You have spared your victim and other witnesses the ordeal of giving evidence in Court. Your plea has utilitarian value and has saved time and resources. I also accept and take into account your expressions of insight and remorse into your offending. Consultant psychologist Luke Armstrong described you as ‘upfront and transparent’ in accepting full responsibility for your offending and as showing empathy for your victim. Your letter to the Court also expresses your remorse and your commitment to prove that you have learnt from your mistakes and made genuine changes.
Youth and no priors
53You were 22 years of age at the time of your offending and therefore while still youthful you do not fall within the meaning of ‘young offender’ in s.3 of the Sentencing Act. Your youth however is still an important factor. As the higher courts have often emphasized, youth must be a primary consideration when sentencing a young person[10].
[10] See also Seualega; R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43.
54In Azzopardi v The Queen, Redlich JA (with whom Coghlan AJA and Macaulay AJA agreed) identified three considerations which underlie the general primacy afforded to an offender’s youth as a sentencing consideration. [11] First, young offenders, being immature, are ‘more prone to make ill-considered or rash decisions’. In that respect, they ‘may lack the degree of insight, judgment and self-control’ possessed by a more mature adult … Secondly, the courts recognise the potential for young offenders to be redeemed and rehabilitated. Thirdly, the courts are conscious that incarceration of a young person for an extended period in an adult prison may be counterproductive ...’
[11] [2011] VSCA 372.
55Given the legislative provisions that apply in this case, the usual prominence given to rehabilitation for youthful offenders needs however to give way to general deterrence and denunciation. As was seen in the cases of Farmer and Fariah your youth nevertheless remains an important consideration.
I take into account that you also have no prior convictions or criminal history or any subsequent matters.
Personal circumstances
56Your personal circumstances were canvassed by your Counsel and are outlined in the psychological reports of Mr Armstrong dated 16 May 2024 and 1 August 2024.
57In summary, your parents worked hard to provide for you and your siblings. Your mother is of Chilean background and your father Greek. He worked full time in traffick control and your mother worked in retail.
58Your family environment was marked by dysfunction, with your parents in constant conflict, which escalated to verbal and physical violence. You also witnessed regular physical fights between your father and brother and were exposed to direct violence yourself. There was also verbal and psychological abuse, as outlined in the report of Mr Armstrong, and overall he considers that your home environment was a ‘significantly confusing’ one. Your father was demeaning and violent and your mother was largely unemotional and detached.
59You were a capable student but experienced some bullying due to being overweight and often found yourself in verbal altercations. Mr Armstrong opines ‘Ms Colivas hostility and tendency to find herself in alterations was in my view a reflection of her situation at home, and her growing dysregulated mental state.’ You completed VCE but quickly lost interest in school.
60With growing disinterest in school you started experimenting with substances from around the age of 15, first experimenting with alcohol, often binging until blackout. You then started using MDMA and cannabis. You struggled with self esteem and also from the age of 15 years had begun self harming.
61You report experiencing your first sexual assault at the age of 16 years, with the details canvassed in Mr Armstrong’s report at p3.
62On completion of Year 12 you immediately moved out of home and lived in a shared house. Your substance use became embedded though you managed to maintain work. You worked in hospitality and retail and then retrained to work in childcare. This work in particular was a positive turning point for you, as it pulled you up from your drug use and disconnected you from drug associations.
63In 2021, at the age of 21, you started a relationship which was marked by significant domestic violence. Your partner was a drug user and an alcoholic and very aggressive. He ended up in prison and within this context the relationship ended. Around this time, you left your full time employment in childcare and engaged in agency work. You lost your motivation for work, and by late 2021 had began drinking by yourself and ingesting Valium more than weekly. This included a return to very heavy alcohol use on weekends, and MDMA use, including cocaine. Within this context you started to expose yourself to what Mr Armstrong refers to as ‘high risk situations’ and work, as outlined in the last paragraph at paragraph [4] of his report. Within this environment you also experienced your second alleged sexual assault. In the lead up to the offending, you were associating with a criminal and drug using milieu, had commenced another relationship with a drug dealer who you describe as physically abusive and controlling, and leading what can be described as a reckless and high-risk lifestyle.
Poor mental health & its impact
64Your Counsel relies upon the opinions of Mr Armstrong in support of a submission that your mental health is precarious and fragile, your poor mental health was not being treated at the time of the offending and it renders you more vulnerable in custody.
65Mr Amstrong considers that leading up to the offending you were a ‘highly vulnerable and damaged individual’. Your image of yourself, along with your self esteem, was fractured and distorted and you started associating with highly dubious peer groups within the context of escalating drug use. He summarises that by the time you engaged in the offending, you would ‘have suitably fulfilled the criterion for a Borderline Personality Disorder’. You were also most probably an alcoholic with mild to moderate dependency on stimulants and opioids. He suspects that your substance abuse was entangled with your personality disorder, as a form of self-medication.
66You provide an account to Mr Armstrong as to your involvement in the offending and being effectively propositioned by your co-offenders to act as bait. Mr Armstrong states, ‘whilst I do not say that her personality disorder singularly caused her to offend, I would take the view that aspects of her personality disorder were certainly activated in her decision making to engage in the offending now before the Court’ (p7).
67He considers that you lost perspective, were ‘addicted to flattery’ and using substances, and that your involvement was therefore viewed ‘superficially as an opportunistic feel good’, in the context also of being emotionally detached. Mr Armstrong states, ‘I suspect that … with her tendency towards dissociation when under significant stress, she detached or dissociated herself from feelings that would have otherwise prevented her from actually participating in and following through with the offending’ (p8). He suspects that your personality disorder was activated in both your decision making to participate in the offending and your offending conduct.
68In summary, your disorder distorted your thinking; you held an unstable and derogatory view of yourself and as observed with many sex workers, this image disturbance is often fleetingly countered within a context of objectifying their bodies through sex work, in a sense of extreme form of flattery; your decision making was probably further impaired by substance use; your proposed involvement to in part seduce the victim had the alluring effect of bolstering your self-image, ‘at the cost of [your] own rational judgment.’ He also considers that other factors impacted your decision making, including your childhood which desensitized you to violence.
69In his addendum report, Mr Armstrong opines that your ‘diagnosis of personality disorder and to a lesser degree substance abuse disorder will … make a sentence of imprisonment more arduous for [your] metal health than it would for a prisoner who does not present with [your] mental disorder profile.’ He goes on to define personality disorders as pervasive mental disorders which often ‘represent legacies of traumatic abuse’ and how in your case it has developed in the context of your confusing and dysfunctional childhood and aggravated by your experiences of sexual assault. He explains how prison can often be a ‘triggering’ environment and opines, ‘if she is exposed to new abuse experience within an incarcerated setting, it is highly probable these triggers will activate her matching emotional memories, which in turn will bring about a deterioration in her personality disorder. Given her substance abuse history has been entwined with personality disorder, it is of concern to me that Ms Colivas may also regress to a default coping mechanism of drug use for the purpose of self-medication within a prison setting.’
70Your Counsel submits that all the principles of Verdins are enlivened in your case. The prosecution dispute this, submitting that Mr Armstrong’s report doesn’t go so far as to create a causal link[12]. First, there is some equivocation in the diagnosis, and it is not clear; second if the diagnosis is accepted, it did not cause or significantly contribute to the offending.
[12] R v Verdins [2007] VSCA 102.
71I accept the opinions and diagnosis of Mr Armstrong and that your borderline personality disorder may have influenced your decision making, to a degree. However, this needs to be weighed against the circumstances of the offending, including the planning involved and its protracted nature, along with your drug use at the time, which was also a contributor. I consider it warrants only some moderate reduction in culpability. Similarly, I do not consider that the nature and severity of your conditions are such that either general or specific deterrence should be downplayed to any significant degree, but I do take them into account. On the evidence of Mr Armstrong, I accept that your condition may mean that a term of imprisonment will weigh more heavily on you than on a person in ‘normal health’. While I accept that there is a risk that imprisonment may cause a deterioration in your health, I do not consider it reaches the threshold contemplated by limb 6 of Verdins.
Demonstrated achieved reformation
72Your Counsel submits that you have made significant change and that your rehabilitation over what is approaching a two year period is ‘well entrenched’. It will only be ‘maximised’ by allowing you to remain in the community.
73It is submitted, this is demonstrated by the following:
(a) The ‘profound personal transformation’ that you have undertaken, as outlined in your letter to the Court.
(b) Your regular attendance and embracing of your church and the church community, along with your participation in charitable activities. The priest of your church, Antonios Theofolos, attended court and gave supporting evidence on your behalf. He referred to your active participation with the Church. Also, a key leader in the Revival Church, Ms Rodgers, in her reference, speaks of you as a ‘productive member in [the] church’ – ‘she attends regularly, she’s friendly, approachable, and she’s a big encouragement to many. She gives generously to others and enthusiastically participates in charity events’[13] .
(c) Your ongoing and current full time employment at a salon. Your employer speaks of your ‘exceptional work ethic, dedication and commitment to personal growth’ and of entrusting you with significant responsibilities[14] . Alongside your employment you are also enrolled as an apprentice student in Certificate III in Hairdressing[15] .
(d) Your focus on daily fitness and connecting with your family and new circle of friends[16] .
(e) Your ongoing treatment with psychologist Ms Tracey Allen since May and June 2024. In her letter, she confirms that you have attended seven in-person sessions and she describes your progress as ‘remarkable, especially given the added complexity of [you] grieving the very recent death of [your] brother’, which I will return to in a moment. She describes your participation as ‘commendable’ and you as an ‘active participant’ and that it is clinically recommended for treatment to continue uninterrupted, if possible (letter Tracey Allen).
(f) Reliance is also placed on your ongoing compliance with strict bail conditions, which included a curfew and reporting conditions.
[13] Edwina Rogers letter.
[14] Isabella Stoforidis letter.
[15] Mirella Heuperman letter.
[16] Chelsea Arsic letter.
74I accept that there has been demonstrated rehabilitation in your case over a substantial period and I also accept, and take into account, that this reduces the need for specific deterrence in your case.
Extra curial punishment
75At the time of the offending, you had employment in child care holding a working with children check certificate. As a result of the media attention in your case, the offending was detected and your employment was terminated. You have lost your aspiring career in childcare and will be unable to return upon a conviction, given the likely implications this will have for your certificate. Your sister in her letter speaks of the enormous efforts you went to pay for your own schooling to pursue your career choice as an Early Childhood Development teacher (letter Sandy Camargo). Your Counsel submits, and I take into account, that your loss of reputation, employment and career path is a form of extra-curial punishment.
Death of brother
76Your case was originally listed for plea on 2 August 2024 and adjourned to 5 September 2024 for sentencing. Between this period and on 24 August 2024 your brother, Andrew, died. As a consequence, your case was adjourned for a period of time. As your sister refers to in her recent letter, your brother died suddenly when holidaying overseas. She describes the deep impact of his passing on all of your family, particularly you. She refers to the ‘incredibly close bond’ you shared from childhood and describes him as not only your brother but your ‘protector’. I note that Mr Armstrong in his first report referred to your close relationship with your brother and in fact spoke to him. Your brother shared and corroborated information as to your childhood and the chronic violence and abuse you both experienced. Your sister describes your brother as having been a ‘constant source of support and safety’ for you and how you are devastated by his death. You have been attending his grave at least three times a week and you were instrumental in planning for his funeral. Your family went to Vietnam to retrieve his body and visit the morgue but you were unable to join them because of your bail conditions. You were largely left to grieve on your own and your inability to join them and assist at that critical time has left you with ‘a lingering sense of guilt and loss’. She also refers to this tragedy as bringing your family closer together but also leaving you fragile. Priest Antonios Theofolos also gave evidence relevant to this issue.
77I take into account the recent and profound grief you have experienced in losing your brother; it’s impact on you; your inability to join your family in Vietnam due to your bail conditions at a crucial period of time; and also, rather than allowing this to derail you, you have remained committed to change.
78As already noted, the prosecution submit that these circumstances, collectively are not sufficient to enliven the exception. In summary, they submit: the circumstances of your case can be contrasted to the more extreme circumstances of the cases referred to by your Counsel and to characterise the changes you have made as a ‘complete turnaround’ is putting it too high. It was generally accepted that the death of your brother is a significant intervening factor. The prosecution contend that a term of imprisonment is warranted in your case.
79After careful reflection, I consider that a combination of the factors relied upon on your behalf are of the most mitigating kind and constitute circumstances that are ‘substantial and compelling so as to justify not imposing a custodial sentence.’ I also consider that the cumulative effect of these circumstances, as I have canvassed, are significant and ‘exceptional and rare.’
Sentencing principles
80Having made this finding, I must consider relevant sentencing matters and principles in your case. The purpose of sentencing are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. General deterrence and denunciation are particularly important given the nature of the offending. Specific deterrence and community protection, while still relevant, can be afforded less weigh in your case for the reasons I have already canvassed.
81In sentencing you, I take into account all of the factors I have already referred to, including my assessment of the gravity of your offending, your history, the reports of Mr Armstrong and your lack of prior criminal history. I give full weight to your plea of guilty and that it was entered at an early opportunity. I accept your Counsel’s submissions that you present with ‘excellent prospects of rehabilitation’, noting in fact that you have already made, what I have assessed to be, significant inroads.
82Mr Armstrong regards your risk of reoffending as ‘relatively low’ and that this risk would continue to decrease if you had the opportunity to continue to receive intensive forensic psychological treatment. He explains this assessment by reference to a range of factors, many of which I have already canvassed, including that there is evidence that the offending and its aftermath has been a ‘jolting experience’ for you. Also, I take into account the clear family and community support you have. I have already referred to the letter of your sister. Your sister-in-law also refers to you as ‘loving and nurturing’ and as an important member of the extended family and your personal trainer and coach also speaks of you as a valued member of the gym.
83I have taken into account the sentencing guidelines referred to in s.5 of the Sentencing Act where relevant in your case. I have also had regard to the general sentencing landscape for the offences, in particular of kidnapping, extortion with threat to inflict injury, reckless cause injury. I also take into account the principles of parsimony, proportionality and given the temporal nature of the offending, totality.
84As already noted, you were recently assessed for a corrections order and you were assessed as suitable. A community corrections order is capable of constituting a significant punishment. It is also a particularly important sentencing option in the case of young offenders. As the Court of Appeal in Boulton stated it may reconcile the perceived conflict between the need to punish an offender and rehabilitate – as rehabilitation and punishment can be achieved simultaneously[17].
[17] Boulton v The Queen [2014] VSCA 342.
85In all the circumstances I consider that a significant CCO is capable of addressing the punitive and denunciatory purposes of sentencing while also ensuring that your process of rehabilitation, in which the community has a vested interest, is able to continue. It will operate for a substantial period of time and have attached punitive conditions that you must comply with for its duration.
Sentence
86On charges 1, 2, 3, 4 and 5 you are convicted and placed on a Community Corrections Order.
87The orders duration is 2 years and 6 months with the following conditions –
88Supervision
89I order that you undertake 240 hours of work, and I am offsetting 100 hours against treatment.(offset 100 hours).
90The treatment includes treatment and rehabilitation fordrug use; alcohol use; and mental health.
91On charge 6, possessing a longarm, you are convicted and fined $300.00.
92I make no s.18 declaration in your case.
93A declaration pursuant to s.6AAA is difficult in this case, because of the mandatory provisions that apply. Proceeding on the basis that I would still have been so satisfied (and general sentencing options are open), but for your plea of guilty I would have sentenced you to a combination sentence of 10 months’ imprisonment and a community corrections order.
Paris Kennedy
94Turning to you Ms Kennedy, your personal circumstances were outlined by your Counsel.
95You grew up in Randwick in NSW. Your younger brother lives in Sydney with your father. Your father attended Court in support of you and is employed as a security guard. Your parents separated when you were approximately 13 years of age.
96Growing up, your family moved to the central coast and were itinerant. You attended many different schools which made it quite difficult for you to settle. You presented as academically smart and articulate but didn’t quite finish Year 10. You experienced instability and behavioural problems because of what was happening in the home. You had a very difficult childhood. Your mother was, and is, a drug addict. When you were growing up, she was an intravenous speed user and now mainly abuses GHB and methamphetamine. Her own mother, that is your grandmother, had been a heroin addict. Since the young of 4 you have been surrounded by, and aware of, drug paraphernalia and drug use. Your dad also had significant gambling problems over the years. His relationship with your mother was a very volatile one. He was violent towards her and you. You have memories of being 5 and your father beating your mother badly, and you running to a neighbours house for help. Police attended and he was remanded in custody for a period of time. Your mum fled to Adelaide with you and your brother but ended up returning as it seems, at the insistence of your father.
97You now enjoy a very different and supportive relationship with your father and it was suggested, he is largely a different man now to what he once was. You also continue to have some contact with your mother. However, growing up you were exposed to their dysfunction and their dysfunctional relationship and it was not a happy, supportive, safe or nurturing environment.
98Material was placed before the Court that independently verifies your traumatic and deprived background. The letter from Uniting refers to there having been 17 documented prior reports to the Department for a number of concerns, ranging from domestic violence, psychological mistreatment to inadequate supervision and self-harming and suicide risk for child. The writer of the letter, Natalie Mestern, concludes:
‘Paris’s mental health has suffered greatly as a result of her traumatic childhood, and she has experienced self-harm and suicidal ideation from a young age, including presentations at various hospitals. Paris did not have safe adults in her network to act as role models or to demonstrate any of the life skills that children learn as they grow up and this has had a significant impact on her ability to manage her own behaviour and mental health and to make safe, responsible choices.’
99The letter from Andrew Sozomenou, Director and Senior Psychologist of the Read Clinic, dated 26 August 2017 was written when you were in Year 10. It refers to you being estranged from your parents at the time and living mostly with a friends family, stating ‘her parents have had an acrimonious and hostile relationship that was often physically violent and verbally abusive in front of Paris.’ He confirms that you initially presented to the service in 2012 due to your aggressive and oppositional behaviours, your inability to manage your emotions or regulate your behaviours. He confirms a previous diagnosis of ADHD combined type, oppositional defiant disorder and generalised anxiety disorder. He states, ‘she has also been exposed throughout her childhood to significant hostile and distressing interactions by her parents.’ He refers to these issues escalating and you ostracizing yourself from the school environments which, he states, ‘is of concern given her early academic achievements which placed her in the bright ranges.’
100Your Counsel submits, and I accept, that the Bugmy principles have application in your case[18]. In a general sense, your moral culpability cannot be equated with that of a person who has had the advantage of a stable and regular environment, free of abuse, trauma and instability. This also causes me, to some extent, to moderate the weight I would otherwise have given to general deterrence, denunciation and the punitive aspects of the sentence I impose.
[18] Bugmy v The Queen [2013] HCA 37.
101In May 2022 you moved from Sydney to Melbourne, in an attempt to distance yourself from the scene you were associating in and the lifestyle you were living. In particular, your alcohol use was an ongoing issue. You had started to get into trouble as can be seen in your NSW prior criminal history. Your history is relatively limited and while relevant I note that you have no history for dishonesty offending. You were last before the courts on 22 April 2022 for an affray for which you were placed on a community corrections order of 15 months. It was agreed between Counsel that effectively this order operates as a type of good behaviour bond, without other active conditions.
102On moving to Melbourne, you set yourself up and you also met your co-accused Ms Colivas. While your ambition was to start afresh, you were ill-equipped to do so. You were living on centrelink benefits, not working, had no supports, you were in a fairly unfamiliar place and you became quite depressed. While not an excuse, it is within this broad context that your offending occurred.
103You were then arrested in March and spent 90 days in custody on remand at the Dame Phyllis Frost Centre. In June you were granted bail and have been on bail now for a substantial period of time. A condition of bail was that you comply with the CISP program and you did so for 9 months. You engaged in drug and alcohol counselling through Western Health and they speak in very positive terms of your engagement and honesty. In their letter to the Court they refer to you attending at least 12 scheduled sessions and of having ‘made some significant and positive changes in [your] life over the past year.’
104During this period, you have also had some work in traffic control though working has been more of a challenge because of your strict bail conditions, including a curfew. You are now studying cosmetic tattooing. You have a certificate in cosmetic tattooing and are working on developing your skills, with an ambition to open your own business. Your plan for the future is to return to Sydney, where you do also have some useful connections, with a view to setting up your cosmetic tattooing business. You also have ambitions to study law.
105While you occasionally drink, alcohol is no longer a problem for you. You take good care of yourself, attend a gym and have actively engaged in this legal process. You currently maintain a private rental in Ivanhoe. Your Counsel submits that you are smart and ambitious and have every chance of going on to achieve really good things and live a law abiding life. Taking into account all relevant matters, I do consider that you present with favourable prospects of rehabilitation. Your recent achievements and the significant progress you have made suggest considerable resilience and aptitude on your part given your background of profound disadvantage.
106In sentencing you I also take into account your youth. It is a significant factor in your case. I will not rehearse the well-established relevant principles again. In all the circumstances, I consider that general deterrence must give way to your rehabilitation, or as your Counsel submits, the preservation of the rehabilitation that you have already achieved.
107I also take into account your plea of guilty. Your case did proceed to committal however importantly you offered to plead guilty to the charges currently before the Court at the earliest reasonable opportunity and prior to the committal. I accept that your plea of guilty entitles you to a significant discount in sentencing. I also accept that your plea is reflective of your genuine remorse. In his reference, Mr Michael, a friend of your fathers who has helped you during your bail period, refers to your observed emotional distress especially in the lead up to court appearances and to the apparent remorse that you were experiencing. He also speaks of the consistent effort you have made to rebuild your life, especially in terms of finding stable employment, which has been more of a challenge because of your restrictive bail conditions. I also take into account your thoughtful and considered letter of apology, in which you state: ‘To Sultan, I want to say that I am truly sorry for the harm I caused him. I also want to apologise to the Court for my choices, and I take full responsibility for the decisions that brought me here.’
108I also take into account that you served 90 days in custody for this offence. Your Counsel submits that this period was more onerous for you given your young age and that you were in a state that was not your home, without supports. She submits this represents sufficient punishment. She submits also that, considering the principles of parsimony and proportionality, the Court could have regard to this term without imposing an actual term of imprisonment. During your time on bail, which has now exceeded a year, you have also undergone treatment and support.
109Your Counsel submits that in the compelling circumstances of your case, a fine or a bond is appropriate and would also enable you to return home to Sydney sooner rather than later. You have apparently recently been accepted for a lease in Sydney. In your case, Ms Kennedy, the prosecution submit that a term of imprisonment is warranted, whether or not that is confined to the period that you have served.
110I have carefully reflected on your matter. As noted, you have already served a period in custody for this offending but this itself should not dictate the outcome and a sentence should not be imposed for reasons of convenience or because you have already served the time. The Court’s task is to impose a sentence according to law that is just and proportionate and that reflects your overall criminality and the mitigatory factors in your case. The offending involved breaking into Mr Mushkalla home and stealing items of value and it occurred during the operational period of a bond or order that you received in NSW. However, in your case there are significant mitigating factors – including your early plea of guilty, youth, background and Bugmy considerations, conditions and progress on bail and, as I have assessed them, your favourable prospects of rehabilitation. Weighing up all these matters, including the purposes of sentencing, all relevant considerations under s.5 of the Sentencing Act, along with the maximum penalties that apply, I do not consider that this offending warrants a term of imprisonment. The challenge in sentencing you however is that you have now served a term of imprisonment referable to this matter.
111I had you assessed for a CCO and you were assessed as suitable, with conditions. On further reflection, I do not consider such an order to be a just or appropriate sentence in all the circumstances. In particular, I consider that it fails to give adequate weight to the factors I have just mentioned or to reflect that you have already served 90 days in custody.
Sentence
112Synthesising all relevant factors, I consider that the just and appropriate sentence in your case on all charges (including the summary charge 24) is, with conviction, to place you on an adjourned undertaking with conditions. In other words, I order your release on the adjournment of the hearing of this matter for a period of 12 months.
113I do not view this as an insignificant disposition. Such a penalty keeps the matter open against you for a further period of time and a condition of the undertaking is that you be of good behaviour for that period. Also, guided, in part, by the recent MHARS report which indicates you may benefit from a further period of counselling, which I consider would help solidify your rehabilitation in which the community also has a vested interest, I order that within this 12 month period you attend upon your GP for a mental health care plan and undertake the recommended plan. Within the period of the order you must provide proof of having done so. Such an order does not have jurisdictional limits; so in other words you will be able to return to Sydney though you are required to comply with the undertaking. Do you understand?
114OFFENDER KENNEDY: Yes, Your Honour.
115HER HONOUR: I am obliged as a matter of law, Ms Kennedy, to warn you as to what will happen if you breach the undertaking. The undertaking is a promise and you will break the promise by either committing a further offence during that 12 month period, which starts today, or failing to comply with the condition. If you break any of the conditions you can be bought back before the court and face breach proceedings, and one of the things which can happen on breach proceedings is that the undertaking can be cancelled and you can be resentenced, and you may also receive a penalty for the breach itself. Do you understand that?
116OFFENDER KENNEDY: Yes, Your Honour.
117HER HONOUR: Do you agree to comply with this undertaking and the conditions I Impose?
118OFFENDER KENNEDY: Yes, Your Honour.
119HER HONOUR: I make no s.18 declaration in this case, though I make plain that I have taken into account the 90 days that Ms Kennedy has served in custody.
120I make no s.6AAA declaration as I am legislatively not required to do so.
121I make the forfeiture order in the terms sought.
122All right. Now, we have the documents, and I will have them provided to counsel, please. So, can we please hand to Ms Foot both documents, the undertaking that is and the corrections order, to Ms Marcou the corrections order, and Ms Ballard the undertaking. If counsel would check the orders to ensure that they reflect what I have pronounced in court and my intention, and then also, counsel, you are both permitted to approach your clients to go through the conditions, ensure that each agree to them.
123MS FOOT: No issues apart from that amendment, Your Honour.
124HER HONOUR: Thank you. Ms Colivas, can I ask you to stand just while we are amending the order for Ms Kennedy. You are and have agreed to be bound by this order. It is two and a half years, it commences today, there are a number of conditions that I am sure Ms Marcou has just spoken to you about, there are mandatory minimum conditions that apply to all orders, there are the additional conditions that I have imposed also. It is a punitive order that will operate for each day for the two and a half year duration, all right?
125OFFENDER COLIVAS: Yep.
126HER HONOUR: No, you must prioritise it. You can breach an order if during its operational period you either: (1), do not comply with a condition of the order which must be your priority; or (2), commit another offence punishable by imprisonment during its operational period. If you breach an order, then it can be returned, I can deal you for a breach, and it reopens the sentencing discretion in respect of these matters. Do you understand?
127OFFENDER COLIVAS: Yes, Your Honour.
128HER HONOUR: For drafting purposes, on the system there are four summary charges appearing. Ms Foot, if we need to formally have those withdrawn for the purposes of finalising this order, can we do that?
129MS FOOT: Yes, of course. I formally make that application Your Honour.
130HER HONOUR: Thank you. Summary charge 24 remains, and the order will indicate summary charges 16, 17, 18, and 21 have been withdrawn.
131You will both receive copies of your respective orders before leaving court. Counsel, unless there is anything further, thank you for your assistance, and we will adjourn.
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