Director of Public Prosecutions v Kennedy

[2014] VCC 1668

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00950

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROGER KENNEDY

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	1 October 2014
DATE OF SENTENCE:	1 October 2014
CASE MAY BE CITED AS:	DPP v Kennedy
MEDIUM NEUTRAL CITATION:	[2014] VCC 1668

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Zammit
For the Accused	Mr G. Thomas

HIS HONOUR: 

1Roger Neil Kennedy, you can stay seated for the time being.  You have pleaded guilty to an indictment charging you with intentionally causing serious injury; an offence of intentionally causing injury and two offences of common assault.  You have prior convictions and court appearances.   However, those matters were all dealt with within the Children's Court by orders without conviction and the offending does not reveal a pattern of violence in your previous criminal conduct.  I note that on one occasion only you received an order which placed you on probation.  You have not previously served any custodial sentence.

2The prosecution relied upon a summary of prosecution opening which I understand to be accepted as an accurate statement of facts.  I incorporate that summary in full into these reasons for sentence.  Suffice to say that this incident, occurring as it did late on the evening of 23 April 2013 in a suburban residential street, involved a savage and unprovoked attack by you, along with two other males, which involved the very serious offence of intentionally causing serious injury to the first of your victims.  At least one broken bottle was used and a metal pole.  The charges against you are put not on the basis that you necessarily wielded either of those weapons or that you necessarily engaged in the precise acts which led to the serious injury, but that you were part of a joint criminal venture which involved that kind of conduct.   That does not lessen the seriousness of the offending or your moral culpability, although  it is not suggested that the evidence reveals that you personally, caused the injuries that were received by your victims.

3The attack was unprovoked.  I have no doubt that it was fuelled by alcohol in your case and I have no doubt that you now bitterly regret your participation in the offending conduct; that you are ashamed of what you did and that you are genuinely upset when you see photographs of the injuries that were caused and when you reflect upon your conduct that night.  However, it falls to this court to impose a sentence that properly reflects the seriousness of this offending conduct, that punishes you adequately for your part in it, that has the capacity to act as a deterrent to you from getting into conduct of that kind again.  Most importantly, it is necessary for the court to impose a sentence that adequately deters others from engaging in that kind of conduct.  There is a good deal of community unrest about young persons drinking too much and engaging in violence in the streets.   The courts see the results of over indulgence in one substance or another and that kind of violence all too often and it is therefore necessary to ensure that the sentencing considerations that I have just outlined are given proper weight.

4Your counsel I think fairly concedes that and I am sure that you have had it explained to you that it is necessary in those circumstances for the court to impose a custodial sentence.  However, there are a number of things which can be said in your favour.  Your counsel has provided me with a helpful summary of his arguments and has also provided me with a report from a psychologist, Ms Cidoni, and references on your behalf and a letter from the Department of Human Services in relation to your performance whilst on supervised bail.

5It is apparent from all of that that you have had many disadvantages in life and that you have had issues with substance abuse.  You have had emotional issues and you suffer from dyslexia, which has hampered your education and it would seem that the testing of your intellectual capacity suggests not a high level of intellectual functioning.  However, during the last five years, as I understand it, you have been living at the home of your partner's parents.  You now have a young child.  You have been in a steady relationship and in that respect your life has improved significantly for the better.   There are many, many positives that emerge from these reports and references.   Mr Green, for example, speaks very well of you and suggests that you have the capacity to lead an honest and productive life, perhaps in the construction industry.   You have excellent communication skills, he says, and you are extremely organised.  So there are many aspects of your abilities that will stand you in very good stead in the workforce in years to come. 

6It is very clear to me that you have good support structures around you.   In many respects it is remarkable how you have progressed having regard to the difficult start you have had in life and I think that you are so clearly remorseful for your conduct in relation to these matters that I can say that your prospects of rehabilitation are good.  I think that with further help and support, you have every prospect of staying out of trouble in the future.  If it were as simple as that, then I could perhaps impose a sentence that did not involve a period in custody.  Unfortunately the seriousness of the offending conduct leaves me no choice other than to impose a custodial sentence. 

7Corrections will hopefully be looking at your issues and the Department of Human Services, with a view to the period that you will spend in a Youth Justice Centre as being a positive experience.  If you go into it with a positive attitude to participate in the various programs that will be offered to you, then that will further enhance your prospects, firstly of getting parole at the earliest reasonable opportunity and, secondly, of leading a decent and honest life and contributing fully as a partner and a parent. 

8If it had not been for all of those matters in your favour then I would have  considered a term in adult prison.  It was urged upon me that I should seek a pre-sentence report to see if a Youth Justice Centre order appropriate in your case.  It seems to me to be very plain that you meet the criteria, or some of them, for the imposition of a Youth Justice Centre order rather than a term of imprisonment.   Your prospects of rehabilitation are good and I am quite satisfied that you would be vulnerable in the adult prison system.   In those circumstances I accept entirely the opinions expressed in the pre-sentence report, that it is appropriate to impose a Youth Justice Centre order.

9The offending conduct itself, I think, would justify a three-year order.  However, there are so many good things that emerge from the opinions expressed about you and that your remorse being as genuine as it clearly is, and overall your prospects of rehabilitation being good and the support structures around you to help you when you emerge from the sentence that I must impose are such that I need not impose the maximum term of Youth Justice Centre order in your case.

10Taking all those matters into account and bearing in mind your age at the time of the offending and your age now which I think is still 19 years and paying proper regard as I should to ensuring that your rehabilitation is facilitated to the extent I reasonably can, I am ready now to impose sentence upon you, so would you please stand.

11For the offences on the indictment, I convict you in relation to each of those offences and I impose a Youth Justice Centre order for a period of two years.  But for your pleas of guilty, which I observe were at the earliest reasonable opportunity, I would have imposed a prison sentence of four years with a non-parole period of three years.

12Are there any other orders that I need made?

13MS ZAMMIT:  As I understand, there are nine days of pre-sentence detention.

14HIS HONOUR:  I declare nine days of pre-sentence detention as time to be reckoned as served on the sentence that I have just imposed, and deducted administratively from the time you will actually have to spend serving that sentence, and I order that that matter be noted in the records of the court.

15Nothing else?

16MS ZAMMIT:  No, Your Honour. 

17HIS HONOUR:  Right.

18MS THOMAS:  As Your Honour pleases.

19MS ZAMMIT:  As Your Honour pleases.

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