Director of Public Prosecutions v Kennedy
[2015] VCC 494
•24 April 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT HORSHAM
CRIMINAL DIVISION
Case No. CR-06-02513
Indictment No U00416788
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRADLEY JAMES KENNEDY |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Horsham | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 24 April 2015 | |
CASE MAY BE CITED AS: | DPP v Kennedy | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 494 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Duckett | Solicitor for Office of Public Prosecutions |
| For the Accused | Ms M. Casey (plea) Ms K. Shepherd (sentence) | Leanne Warren & Associates |
HIS HONOUR:
1 Bradley Kennedy, on 20 April 2015 you pleaded guilty to Indictment No U00416788 containing two charges – Charge 1, intentionally causing injury, and Charge 2, criminal damage. The maximum penalty for each charge is 10 years’ imprisonment. Your plea hearing was adjourned to the following day, when you admitted a lengthy criminal history.
2 The charges to which you have pleaded guilty are markedly different to the ones upon which you were committed to stand your trial on 24 August 2006, and are also different to those that appeared on the trial indictment that you were to face. Accordingly, your plea of guilty is to be regarded as a plea at the earliest opportunity and it is some evidence of your remorse. Your plea also facilitates the course of justice.
3 Tendered as Exhibit A on the plea was a document entitled “Summary of Prosecution Opening for plea purposes." This was read aloud in Court. In summary, at the time of your offending, the complainant in this matter and you had been friends for about eight years and you had been staying at her unit for about 10 days or so. On the evening of 22 February 2006, you argued with and abused the complainant, which brought about the attendance of the police at about 7.45 pm. You persuaded the complainant not to complain to the police and after they left you assaulted her by smacking her in the “gob”, punching her to the nose and pushing her into the refrigerator, telling her that you were going to “kill her”. The complainant fell over, hitting her back on a metal box that was on the floor (Charge 1, intentionally cause injury).
4 The complainant went to the bathroom to inspect her injuries and you smashed her landline telephone, which was fixed to the kitchen wall, and, shortly thereafter, you smashed the complainant’s portable or walkabout phone. The complainant retreated to her bedroom. You followed her there, took up her jewellery box and threw it into the hallway. You started kicking her bedside table. You damaged both these objects (Charge 2, criminal damage).
5 The complainant suffered redness under her right eye, and swelling under both her eyes and over the bridge of her nose. She had a 2 x 1 centimetre bruise located under her chin, and a 0.5 centimetre laceration to her lip. As well, she had a 2 centimetre superficial laceration located centrally on her back with surrounding bruising.
6 Police attended on a second occasion at about 8.22pm and the complainant told them what had happened.
7 The next day, you were arrested and interviewed under caution. You were still drunk and the interview was suspended. On its recommencement, your answers, in the main, were “No comment” to questions put to you. You did, however, say that you would never go near the complainant again and you have kept your word in that important matter. You were remanded in custody for 127 days until you were granted bail on 29 July 2006.
8 You are a 41 year old Aboriginal man who has suffered profound deprivation, growing up in an environment marked by alcohol and drug abuse and violence which has left its mark on you and that set you on a path of violence and drug and alcohol abuse in your adolescence and adult life.
9 You have suffered severe head injuries and other injuries as a result of a motor vehicle collision when you were a child, and acts of violence perpetrated on you. You have suffered fractures to the orbits of both eyes, your nose, a hand, your skull and a leg. You have undergone surgery in respect of all these injuries, which surgery has resulted in the placement of plates, pins and a rod in your head, face, hand and leg.
10 Your life, from its earliest time, has been characterised by “bouncing” between your mother in Horsham and your father in Lake Tyers, your grandmother, and various partners to whom you have had a number of children. Each one of your romantic relationships has been marked by alcohol and drug abuse.
11 You were committed to stand trial in this matter on 24 August 2006, when you were in hospital recovering from injuries. You failed to appear at the County Court and a warrant for your arrest was issued. Due to an administrative error, the warrant was not executed, despite you serving a number of periods of imprisonment and therefore being at places capable of being known to members of the Victoria Police. A new warrant for your arrest was issued in August 2014 and executed on you. You were bailed to appear at the County Court in November 2014; again you failed to appear. Between 2006 and the present time, you have served at least five terms of imprisonment.
12 You were ultimately arrested in respect of this matter on 22 February 2015 and you have remained in custody since that time. It is to be noted that this is not the only matter that keeps you in custody. You are to appear before the Horsham Magistrates’ Court next week in respect of charges of breaching a Family Violence Intervention Order. In total, you have spent 188 days by way of pre-sentence detention, not including today.
13 There has been a nine year delay in bringing this matter to Court. Your contribution to this delay is your absconding on two separate occasions. An administrative error meant that the initial warrant was not executed and a new warrant had to be issued. In the intervening years, your life has continued on in the same way as it had prior to this offending. That is, you have been in and out of jail. You continued to abuse alcohol. You lived an itinerant life. As a consequence, your prospects for rehabilitation are poor.
14 The six months or so that you have spent on remand has dried you out; you are now alcohol and drug free. I was told by your counsel that you have resolved to break with your family in Horsham and Lake Tyers and to go to Wodonga, there to start a new life. To this end, the Aboriginal Liaison Officer at Port Phillip Prison has taken steps to assist you in this regard.
15 Your offending was fuelled by alcohol. It was a cowardly attack on a woman who had been your friend for years. The principles of general and specific deterrence would normally play a significant role in arriving at an appropriate sentence in your case, however, delay and your background must dampen down their application in your case. Taking into account the circumstances of the offences and their effects, your personal circumstances and antecedents, and in endeavouring to produce sentences which reflect and promote the purposes of sentencing in a manner appropriate to you and your offending, I sentence you in respect of Charges 1 and 2 to an aggregate sentence of 188 days’ imprisonment.
16 I declare that you have spent 188 days by way of pre-sentence detention, not including today.
17 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that, but for your plea of guilty, I would have sentenced you to 12 months’ imprisonment.
18 The end result of this sentence, Mr Kennedy, is that you have been sentenced effectively to time served up to but not including today. You will remain on remand pending the determination of the matters in the Horsham Magistrates Court. I cannot and will not bind the sentencing magistrate in respect of those matters for I know nothing about them. What sentence is imposed is a matter for the sentencing magistrate. But in terms of the sentence that have imposed upon you, you have served that term of imprisonment today. Do you understand that?
19 OFFENDER: Yes I do.
20 HIS HONOUR: Thank you very much, Mr Kennedy. Ms Shepherd, are there any other matters that I need to deal with so far as you are concerned?
21 MS SHEPHERD: No, Your Honour.
22 HIS HONOUR: Thank you. Ms Duckett?
23 MS DUCKETT: There are no other matters, Your Honour.
24 HIS HONOUR: Thank you very much. Then thank you, Ms Shepherd, for your attendance. Mr Kennedy, we will break the link with you now.
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