Director of Public Prosecutions v Kennedy

[2014] VCC 1267

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR CR-12-01156
CR CR-13-02344
CR CR-12-01155

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEVIN KENNEDY
KIM KENNEDY

ASHLEY HYATT

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 August 2014
CASE MAY BE CITED AS:	DPP v Kennedy & Ors
MEDIUM NEUTRAL CITATION:	[2014] VCC 1267

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For The Director	Ms C. Parkes
For Offender Kevin Kennedy	Mr A. Marshall
For Offender Kim Kennedy,	Ms D. Price
For the Offender Hyatt	Mr M. Kowalski

HIS HONOUR:

1Kim Kennedy, Ashley Hyatt and Kevin Kennedy, you were found guilty by jury of aggravated burglary, intentionally cause serious injury and three offences of common assault, all of which occurred on the evening of 29 September 2011.  You, Kim Kennedy, have also admitted a number of prior court appearances and convictions, including four offences involving assault and you Kevin Kennedy have also admitted a number of prior convictions and court appearances which also include offences of assault and other forms of violence.

2You, Ashley Hyatt, of course have no prior convictions.  The prosecution case against you was that after some history of assault on other persons associated with one side or the other of the family, the three of you went to the home of members of the other side of the family dispute which had been apparently occurring over a period of years prior to 29 September 2011 and you went there on the verdict of the jury with the intention of entering the home of those persons at 4 Clifford Street in Wodonga, with a view to assaulting a person within those premises and at the time you had with you an offensive weapon, namely a metal pole, and that each of you knew that a person was present or was reckless as to whether a person was present when you entered the premises as a trespasser.

3The jury was clearly satisfied that you were engaged in a joint criminal venture to carry out that aggravated burglary when you arrived at the premises, and that the joint criminal venture included the possibility at least that one of your number would, in the course of carrying out the offence, intentionally caused serious injury to one or other of the persons present in the - or in the vicinity of premises. 

4I am satisfied that the offence of intentionally causing serious injury to Dennis Rolton was carried out by you Kevin Kennedy and you Ashley Hyatt and clearly the jury found that it was indeed part and parcel of the joint criminal enterprise and encompassed within the exploitation of the three of you in carrying out that offence and was therefore an offence for which you were jointly liable.  But it is accepted that on the evidence, I should not find that you, Kim Kennedy, were actually involved in the carrying out of the injury to Mr Rolton in the sense that you played no part in the actual assault upon him yourself.

5The jury also found each of you guilty on the basis of the joint criminal enterprise of assaults on Joseph Rolton, on Leroy Johnson and Joy-Ann Rolton. But you Ashley Hyatt have - pleaded guilty to two other offences which are summary offences, related summary offences which are possessing a prohibited weapon, namely a pair of sai, s-a-i, and also possessing cartridge ammunition whilst not being the holder of the license under the Firearms Act for that purpose.

6I think it is fair that each of you had been drinking on that day.  It is clear that the assault on Liza Kennedy occurred not long before the offending conduct in this case was the catalyst for the offending on that night.  I think it is clear that in your case, Ashley Hyatt, you became incensed when you discovered that your partner had been assaulted at the hands of Jodie Schilg, apparently with a weapon of some kind, and caused injury, and that you and your two co-offenders then determined on a course of revenge.  It may be that you are primarily seeking Jodie Schilg in order to remonstrate with or to carry out an assault upon her, and it may very well be that you did not anticipate that Dennis Rolton would be at or near the front door of those premises when you arrived, but there was absolutely no excuse for the violence that was perpetrated against Mr Dennis Rolton or indeed any of the others that were the subject of the assaults of which you were found guilty in the course of this evening. 

7The prosecution rightly pointed to the fact that there were children present during the course of the aggravated burglary and that aggravated burglary was a serious example of offending conduct of that kind.  These people were indeed entitled to the sanctity of their own home and not to have people enter against their will and with intent to carry out assaults of the kind that were carried out by you on this occasion.  I indicated during the course of the plea hearing that I regarded the assault which led to the serious injuries to Mr Dennis Rolton as the most serious aspect of the offending conduct. 

8And it seems to me that that is a particular serious offence given that he suffered some serious facial injuries and in addition to continuing physical effects of those injuries he bears the emotional scars and would no doubt continue to bear those emotional scars for some considerable time, if not the rest of his life. 

9Turning to matters personal to each of you, you have hard life I think and I am quite sure that have had to deal with all kinds of discrimination and abuse and you have had to cope also with violence within the family and alcoholism and all of that in endeavouring to fulfil your duties and obligations as a mother to your children. 

10You, Ashley Hyatt, have no prior convictions.  As I indicated during the course of the plea hearing, it seems apparent that you would have been extremely upset by the news that your girlfriend had been assaulted in the way she had and in that sense, one can understand you losing your temper and one can see the pathway that led you to commit these offences, despite the fact that you had not committed any offences previously.

11You, Kevin Kennedy, I think had less excuse in the sense that you had not been involved in any of the precipitating events during the early part of the day.  You may have had occasion to observe what was going on during the assault carried out by Liza Kennedy earlier in the day but you had no excuse to be there other than through providing your bulk and your strength in order to assist other members of your family, no doubt born out of a misplaced sense of family loyalty.  It seems clear that the whole incident arose out of this longstanding family dispute.  That explains the history, it does not excuse your conduct and it did not give you any right to commit these offences.

12It was submitted on your behalf, Kevin Kennedy that I should look at your upbringing; difficult as it has been and the fact that you have a good part of your life since the age of about 14 in custody of one kind or another and the general circumstances in which you grew up, indeed it seems to me that each of you to some extent can (indistinct) the circumstances in which you grew up and the family circumstances in you lived during the lead-up to this offending conduct, at least as context in which this offending occurred.

13It's always difficult for a judge to assist with any degree of accuracy precisely where offending conduct of this kind, serious offending conduct comes into the spectrum of offending conduct of this kind and to assess the degree of culpability, the degree to which people should be punished for this kind of conduct.

14I have the benefit in your case, Kim Kennedy, of a lengthy report from Mr Healy, psychologist, which sets out much about your background and I have taken careful note of that.  I have in your case, Kevin Kennedy, the benefit of a report from Mr Geoffrey Cummins dated 5 August this year which also sets out a good deal about your background and I found that very helpful and I take that into account. 

15In each of your cases, almost three years has passed since the offending conduct.  It is clear that delay is a relevant factor that I have to take into account in reduction of what might otherwise have been appropriate sentence.  This matter has been hanging over your heads for almost three years and each of you must have had a fear during that period that ultimately you would be sentenced to terms of imprisonment for your participation.  And although in your case, Ashley Hyatt it seems you have an outstanding matter which is still to be dealt with involving an assault on police, you have during that period shown further evidence that you are capable of staying out of trouble.  Unfortunately, in your case, Kevin Kennedy you haven't been at large for any significant period during that intervening period but to the extent that you have then obviously the fact that you have not offended again in this manner during that period in further pursuit of a family feud is to your credit.  In your case, Kim Kennedy, you have not been in any further trouble with the law as I understand it, in the intervening period and it is to your credit that you have not sought further to pursue the violent response to this family dispute which you pursued on this particular night.

16In your case, Kevin Kennedy, it was urged upon me that I should take into account the fact that you went into custody on 27 December 2012 and haven't since then been free, albeit that some of that time has been taken up with serving sentence for offences that occurred in New South Wales, as I understand it.  I should nevertheless take all that into account and the fact that that has all contributed to your being in custody for these matters for the best part of ten and a half, 1 months and that I should take the periods during which you have been in custody beyond those - that are strictly to be regarded as pre-sentence detention into account in reduction of sentence and I do that.  Of course, it is not a mathematical exercise but I do take that into account. 

17You, Kevin Kennedy of course are only 24 years of age now and were 21 years of age I think at the time the offending conduct occurred.  You're still a young man and you are at risk of becoming, if you are not already to some extent.  It is recognised that it is important in the case of sentencing young people, albeit for serious offences, to look to rehabilitation as being an important sentencing consideration.  I think it is important in your case and I think it is also important in your case Ashley Hyatt.  You are only 25, almost 26 years of age now.  Still a young man, and you have still got a lot to look forward to and with no prior convictions behind you, one can say in your case I think that your prospects of rehabilitation look to be good. 

18In your case, Kevin Kennedy, it is more difficult to say that but if it is possible for you to stay away from illicit substances and to learn lessons that are apparently being taught to you at the moment whilst you are in the youth unit in Port Philip Prison, then your prospects of rehabilitation will be considerably improved.

19I heard what your counsel said to me the other day about his conversation with Ms Hooker, and I have been fortunate enough to have Ms Hooker's evidence in other cases involving young persons like yourself and I have good reason to treat her opinions with respect and her positive attitude towards you and your future prospects is encouraging.  I would say very encouraging.  You will be able to stay in the unit, as I understand it, until you are 25 years of age, is that right?  Which is what, another nine months or so, and I hope that your further time in that unit will further assist you with your rehabilitation.

20It is of course necessary for me impose sentences that  punish you adequately for your offending conduct.  I indicate the views of the court about offending conduct of this kind being that it is serious offending conduct and needs to be condemned, it is necessary for me to impose sentences that deter you, each of you, from committing further offences of this kind.  Particularly those of you, Kim Kennedy, and Kevin Kennedy who have previous convictions for offences of this kind and to impose sentences that have the capacity to deter others from committing offences of this kind.  It is also necessary for me to promote and facilitate to the extent I reasonably can, your rehabilitation.  Each of you.

21Kim Kennedy, I would hope and expect that you will have learnt whatever lessons you need to learn from this and put this all behind you and stay out of trouble in the future.  I think you have a reasonable prospect of achieving that.

22I have already indicated that I regard the offences as serious and it is necessary for me to impose sentences involving immediate terms of imprisonment.  However, I think for various reasons that it is necessary to maintain a sense of proportion and although as I say they are serious offences of their kind, not to impose sentences that are crushing, and that leave you - each of you - with a positive attitude towards your futures and encourage you to work towards your further rehabilitation.  For that reason, I propose to impose sentences that have a significant period of the sentence to be served on parole in the event that you are able to persuade the parole board that you merit parole.

23I of course cannot give you credit for showing remorse, I cannot give you credit for pleading guilty, and I therefore cannot reduce your sentences for factors of that kind.  However, let me make it clear, you are not to be punished for having exercised your rights to go to a trial by jury and I do not add to your sentence by way of further punishment for you having chosen that course.

24All right, having said all that and doing the best I can to balance as matters as fairly as I can, I am ready to pass sentence upon you.  In your case, Kim Kennedy, would you please stand?  For the offence of aggravated burglary, I sentence you to imprisonment for a period of four years.  For the offence of intentionally cause serious injury, Charge 2, I sentence you to imprisonment for four years.  On Charge 4 of assault, I sentence you to imprisonment for three months.  On Charge 5 of assault, I sentence you to imprisonment for a period of three months, and on Charge 6 of assault I sentence you to imprisonment for a period of three months.  I order that six months of the sentence on Charge 2 be cumulative with the sentence on Charge 1.  The total effective sentence is therefore four years and six months, and I order that you serve a period of two years and three months before you become eligible for parole. 

25Ashley Hyatt, on Charge 1 of aggravated burglary, I sentence you to imprisonment for four years.  On Charge 2 of intentionally cause serious injury, I sentence you to imprisonment for a period of four years and three months.  On Charge 4 of assault, I sentence you to imprisonment for a period of three months.  On Charge 5 of assault, I sentence you to imprisonment for three months.  On Charge 6 of assault, I sentence you to imprisonment for three months.

26I order that three months of the sentence on Charge 1 be served cumulatively on the sentence for four years and three months, making a total effective sentence of four years and six months and I order that you serve a period of two years and three months before you become eligible for parole.

27Can I just check the pre-sentence detention for each of Kim Kennedy.  Is it 57 days in Kim Kennedy's case now?

28MS PARKES:  That's correct, Your Honour.  And Ashley Hyatt.

29HIS HONOUR:  And Ashley Hyatt, 57 days also.

30MS PARKES:  And Kevin Kennedy 305 days.

31HIS HONOUR:  305 days.  All right, thank you.  In each of your case Kim Kennedy and Ashley Hyatt, I declare 57 days of pre-sentence detention as time served on the sentences that I have imposed and those periods will be deducted administratively from the time that you will actually have to serve.  Ashley Hyatt, I will also have to deal with you in respect of the two summary offences.  And in the case of each of those, I convict you and discharge you. 

32In your case, Kevin Kennedy; stand please.  On Charge 1 of aggravated burglary, I sentence you to imprisonment for four years.  On Charge 2 of intentionally cause serious injury, noting that you have prior convictions for assaults, and were along with Ashley Hyatt actually involved in the causing of those injuries, I sentence you to imprisonment for a period of four years and six months.  On Charge 4, of assault, I sentence you to imprisonment for three months.  On Charge 5 of assault, I sentence you to imprisonment for three months.  On Charge 6 of assault, I sentence you to imprisonment for three months.

33I order that six months of the sentence on Charge 1 be served cumulatively upon the sentence of four years, six months that I sentenced you to on Charge 2, making a total effective sentence of five years and I order that you serve a period of two years and six months before you become eligible for parole.  I declare 305 days pre-sentence detention as time served on the sentence that I have imposed, and that will be deducted administratively from the time you will actually have to serve.  In respect of each of you, I convict you for each of the offences to which I have referred and for which I pass sentence.

34In the case of you, a forensic sample is sought and that will involve you providing a scraping from the inside of your mouth when called upon to do by an authorised officer and if you comply with the request there won’t be any problem.  If you fail or refuse to provide the forensic sample then the authorised officer will be permitted to take a blood sample and may use reasonable force to do that.  I don't suppose any of you will cause any difficulty in the provision of those forensic samples, and I make the disposal orders in terms of the drafts with which I have been provided.  Any other orders?

35MS PARKES:  Your Honour, can I just clarify Mr Hyatt is a retention order.  There's already a sample obtained, so it is simply a retention ordered.

36HIS HONOUR:  Is it?

37MS PARKES:  Is it - yes, I'm sorry about that.  In Mr Hyatt's case, it would be the retention of a forensic sample rather than the provision of a forensic sample, I'll sign those orders in just a moment.  Are there any other orders which I need to make?

38MS PARKES:  No, Your Honour.

39HIS HONOUR:  I think I'll take the orders away and sign them rather than sign them in court and provide copies to the parties.

40Yes, all right.  I'll just leave the Bench briefly whilst we reconstitute.

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