Director of Public Prosecutions v Kennedy

[2022] VCC 626

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-21-02716

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRAYDEN KENNEDY

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2022
DATE OF SENTENCE:	6 May 2022
CASE MAY BE CITED AS:	DPP v Kennedy
MEDIUM NEUTRAL CITATION:	[2022] VCC 626

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords:  Common assault - High value plea of guilty - Extensive criminal history - Specific deterrence - Relatively young offender - Post-traumatic stress disorder - Substance abuse disorder – Verdins principles not engaged

Legislation Cited: N/A

Cases Cited: R v Verdins (2007) 16 VR 269

Sentence: Aggregate term of imprisonment of 1 year and 9 months with a 12 month non-parole period - s 6AAA declaration - Aggregate term of imprisonment of 3 years with a 2 year non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P Kelly	Office of Public Prosecutions
For the Accused	Mr J Barreiro	Adrian Paull Criminal Lawyers

HIS HONOUR:

1Brayden Kennedy, you have pleaded guilty to two charges of common assault contrary to common law.  The maximum penalty for that offence is five years imprisonment. 

2You pleaded guilty following the prosecution electing not to proceed with a charge of armed robbery, in circumstances where you have previously been dealt with in the Magistrates' Court in relation to a charge of handling the stolen goods the subject of the charge of armed robbery.

3In these exceptional circumstances, in my opinion, it is appropriate for me to treat your plea as an early one and further, it has facilitated the administration of justice in the COVID-19 pandemic by the resolution of this matter.  I have taken your high value plea of guilty into account in your favour in mitigation of sentence, and I accept that it is evidence of remorse for your offending.

4You have admitted an extensive criminal history for a range of serious offences in this court, the Magistrates' Court and the Children's Court.  You have been the subject of dispositions intended to support your rehabilitation which have to date been unsuccessful.  Specific deterrence is a prominent sentencing consideration in this case, as is the protection of the community from your offending.

5A prosecution opening was read to the court and tendered in evidence, and your offending may be summarised as follows -

6At 5.15 pm on Saturday, 13 February 2021, the victims of your offending, a male and female, were walking along Purnell Road in Corio.  You approached them and threatened them with a knife that you were carrying.  You demanded that they give you their phones and wallets, and after taking these items from both of them, you left.  You apologised to your victims, telling them your life is 'fucked up'.

7Later that day you were arrested by investigating police.  The victims' belongings were recovered from you and you were charged with handling those goods.  You pleaded guilty in the Geelong Magistrates' Court on 1 June 2021 and were sentenced to an aggregate term of imprisonment of 60 days. 

8This sentence must be calculated to deter others from offending in this manner, and as I have observed you must also be deterred from re‑offending. 

9I now turn to your personal circumstances. 

10You were born in Geelong in August 1997 and are now aged 24.  Your childhood and development years were seriously disrupted by your parents' separation and regular family violence in the home.  You struggled at school due to a physical condition and left primary school in Year 7.  You have four siblings, two of whom have also been imprisoned.  You have no formal qualifications, and your work history is limited.

11You have abused alcohol and illegal drugs of dependence since a young age and much of your offending has occurred whilst you were intoxicated.  I have received in evidence the psychological report of Ms Carla Lechner, setting out your background and psychological profile.  I accept that you suffer from post‑traumatic stress disorder, linked to your disrupted childhood, and you also suffer from associated anxiety and depression.  These conditions also inform your substance abuse disorder.

12Whilst your counsel submitted that the principles enunciated by the Court of Appeal in R v Verdins (2007) 16 VR 269 were not engaged in your case, in my opinion it is clear from the contents of Ms Lechner's report that you are a psychologically fragile young person, and this has no doubt contributed in large measure to your offending. You require ongoing treatment and support for your drug addiction and underlying fragile mental health, and your future rehabilitation is dependent upon this.

13You are still a relatively young man, and this remains an important factor in sentencing you.  You have been in custody during the COVID-19 pandemic, and I accept that this has increased the hardship of imprisonment upon you by reason of the restrictions imposed in response to it.  Furthermore, you are also facing a number of other charges of dishonesty and drug possession, to be heard in the Magistrates' Court later this month, and I assume that the Magistrate will take into account the fact that you have served the term of imprisonment that I am proposing to impose.

14In the result, the sentence of the court is as follows -

15On both charges on the indictment, you are sentenced to an aggregate term of imprisonment of 1 year and 9 months.  I direct that you serve 12 months imprisonment before becoming eligible for release on parole.  I declare that you have served 321 days by way of pre-sentence detention, not including today. 

16But for your plea of guilty, I would have imposed a total effective term of imprisonment of 3 years and fixed a non-parole period of 2 years.  I will make the disposal order sought by the prosecution.

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