Director of Public Prosecutions v Kennedy
[2021] VCC 20
•21 January 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20 01253
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CONNOR KENNEDY |
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JUDGE: | HER HONOUR JUDGE LAWSON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 December 2020 |
DATE OF SENTENCE: | 21 January 2021 |
CASE MAY BE CITED AS: | DPP v Kennedy |
MEDIUM NEUTRAL CITATION: | [2021] VCC 20 |
REASONS FOR SENTENCE
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Subject:Sentencing – criminal law
Catchwords: burglary, theft, attempted burglary and attempted theft, armed robbery, robbery and conduct endangering persons – youthful offender – relevant criminal history – mitigating circumstances – early plea of guilty – impact of COVID-19 pandemic – relatively immature – at risk in adult incarceration – order for detention in youth justice centre made
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr L. Harrison | Abby Hogan, Solicitor for Public Prosecutions |
For the Accused | Mr J. Barrera | Stary Norton Halphen Geelong |
HER HONOUR:
1Connor Kennedy, you have pleaded guilty to 12 charges including three charges of theft, two charges of burglary, two charges of attempted burglary, one charge of attempted theft, two charges of armed robbery, one charge of robbery and one charge of conduct endangering persons. The offending ‑ ‑ ‑
2The offending occurred over the course of 20 and 21 March 2020 in Bell Post Hill, Belmont, Newtown, Corio and Norlane, all suburbs of Geelong.
3Your offending is serious and that is reflected in the maximum penalties prescribed by law in respect of each of the charges and they are as follows: for armed robbery, 25 years' imprisonment; theft and burglary, 10 years' imprisonment; robbery, 15 years' imprisonment; attempted theft, attempted burglary and conduct endangering persons, five years' imprisonment; deal property suspected as proceeds of crime, two years' imprisonment; possession of a controlled weapon, 120 penalty units or one year imprisonment; resisting an emergency worker on duty, 60 penalty units or six months' imprisonment; unlicensed driving, 60 penalty units or six months' imprisonment; and commit indictable offence whilst on bail, 30 penalty units or three months' imprisonment.
4In addition to those indictable matters that I have earlier referred to, you have also consented to summary charges being transferred pursuant to s.145 of the Criminal Procedure Act 2009. You pleaded guilty to one charge of committing an indictable offence whilst on bail - Charge 12; one charge of driving unlicensed - Charge 16; one charge of resist emergency worker on duty - Charge 21; one charge of possess a controlled weapon without lawful excuse - Charge 22; and one charge of deal with property suspected to be the proceeds of crime - Charge 27.
5I shall proceed to sentence you on the basis of the amended summary of prosecution opening that was exhibited at the plea hearing.
6By way of background, on Friday 20 March 2020 and into the early hours of 21 March 2020, you committed the offending. At that time, you were aged 18 and you are now 19, your date of birth being 18 May 2001.
7Previously, on Thursday 12 March 2020, you were granted bail at the Geelong Magistrates' Court for offending related to an assault with a weapon and theft. Bail was therefore active at the time of the offending that is before the court and therefore you have been charged with summary Charge 12 - commit and indictable offence whilst on bail.
8You have never held a driver's licence.
9In the early hours of the morning on 18 March, your co-accused Isaiah Jones, an acquaintance, entered a residential property in Highton where he located a set of car keys for a Volkswagen Passat belonging to Elizabeth Duka. Jones was aged 20 at the time of the offences. He proceeded to drive away in Ms Duka's vehicle.
10On Friday 20 March 2020 at about 3 pm, in company with Jones you attended a property in Bell Post Hill. You were driving the stolen vehicle that belonged to Ms Duka and that constitutes Charge 1 - theft. You parked the vehicle opposite a house and Jones approached the front door of the property at 41 Dane Avenue, Bell Post Hill. He knocked on the door but was not heard. You then joined him a short time later and you both kicked the door until the glass of the door smashed and then you entered the property by a few metres. That is Charge 2 - burglary.
11The owner of the property, Ms Stojanovski, heard a loud bang and the sound of glass smashing. She initially thought it was her husband and called out to him but when there was no response, she went down towards the front door. At that time, she saw you both standing in the hallway of her home. As soon as you saw her, you both fled and drove away in the stolen vehicle.
12A short time later, you attended a different property in Hazel Street, Belmont in the stolen vehicle and the owner of that residence, Mark Whitemore, was not home. However, returned to his home a short time later. He saw the stolen vehicle parked outside the front of his property with one of the doors open. He then saw Jones walking away from the front door of his residence. Once Jones noticed Mr Whitemore, you and Jones both drove away from those premises.
13Mr Whitemore inspected the front area of his house and noticed that although the front door had been pushed around the frame, entry was not successful. That is Charge 3 - attempted burglary.
14Mr Whitemore also noticed the Nissan motor vehicle that was parked in the driveway of his residence had both front doors open and although the vehicle and had been rifled through, nothing was taken. It is Charge 4 - attempted theft.
15On the same day, a short time later, Andrew Barlow heard a vehicle in the laneway behind his house in Aberdeen Street, Newtown. He saw the stolen Volkswagen Passat in the laneway. Jones was seated in the driver's seat and you were attempting to open the garage of Unit 1/113 Aberdeen Street. He yelled out to you and you both fled in the stolen vehicle. That is Charge 7 - attempted burglary.
16Mr Barlow knocked on the door of the unit but no one was home at the time. He then attended Unit 2/113 Aberdeen Street and found the front door of that residence wide open. CCTV footage was obtained and that depicted you entering the property and that constitutes Charge 5 - burglary.
17You stole a Chanel handbag, a leather bag, a set of Bose headphones, medication and the spare keys for a vehicle belonging to Ms Susan Ray from those premises. And that is Charge 6 - theft.
18At 5.30 pm on 20 March, you in company with Jones attended 46 Buckland Avenue in Newtown. Jones exited the stolen vehicle and went over to an Audi motor vehicle that was parked in the driveway and opened the driver's door and he then signalled you to join him. You both rifled through the vehicle and stole a wallet containing $100 cash as well as identification and bank cards. You took the vehicle’s spare key and a garage remote. That is Charge 8 - theft.
19At approximately 8 pm on 20 March 2020, Anthony Burton and Aiden Pyle were walking along Princess Road, Corio. They were both aged 15. You were driving the stolen vehicle in company with Jones. You stopped the vehicle and then both of you got out. You demanded Mr Pyle's shoes, saying, 'Give me your shoes. Let's swap now. Give me your shoes or I'll rock you.' Mr Pyle took off his Nike shoes and gave them to you and you proceeded to put on his shoes. You also took his wallet, hat and mobile phone. That is Charge 10 - robbery.
20Jones asked Mr Burton for his phone but he said he did not have one. Jones then pulled a knife out of his pocket and Mr Burton handed over a white Apple iPhone 8. And that is Charge 9 - armed robbery.
21Jones asked for the password to the phone to which Mr Burton replied, 'Please don't.' You and Jones then returned to the stolen vehicle and proceeded to drive off. You returned later to where Mr Burton and Mr Pyle were walking and whilst holding a knife out again, you screamed at Burton for the password to the phone. You then drove off again. Mr Burton and Mr Pyle walked to a residence where they reported the matter to the police.
22Approximately 10 minutes later, Cameron Taylor was riding his bike on Moreland Drive, Corio. You pulled up in the stolen vehicle beside him. Jones leaned out of the driver's window and shouted 'Oi' to Mr Taylor.
23Mr Taylor recognised Jones as the driver as they had been at school together in the past.
24You then got out of the car and made your way over to Mr Taylor. You pulled a knife out of the front pocket of your jumper. The knife was 22 cm in length and had a black handle. As you pulled out the knife, you pointed it towards Mr Taylor. Jones said, 'Just hand over your stuff. Hand over the phone and the North Face vest.' Mr Taylor gave Jones his mobile phone. Jones asked him for the PIN code which was provided. And that is Charge 11 - armed robbery.
25Jones told Mr Taylor to take off the North Face vest. You then came towards Mr Taylor and pushed the knife against his stomach. Mr Taylor tried to take the vest off but you told him you would do it. He stood there frozen whilst you removed his vest. You and Jones got into the car and drove away. Mr Taylor rode his bicycle to a nearby home where the matter was reported to the police.
26At approximately 12.15 am on Saturday, 21 March 2020, police were patrolling the Norlane area where they observed the stolen vehicle travelling towards them. The vehicle was being driven by you. Police were aware that that vehicle had been used in several offences and turned their car to block the road. However, you mounted the kerb and the nature strip to get past the police vehicle, causing the vehicle to scrape against a tree. Police followed, observing you to drive on the wrong side of the road before deciding to end the pursuit.
27A short while later, further police members were patrolling the area and they also observed you driving the stolen vehicle in Norlane. The police members performed a U-turn and began to follow your vehicle which did not have its headlights on. Your vehicle was observed swerving from left to right, entering a roundabout from the wrong side of the road, proceeding through a red light, turning wide onto the wrong side of the road causing oncoming traffic to brake heavily and swerve to avoid collision. You were driving on the wrong side of the road and you had your lights turned off whilst continuing to drive. And that is Charge 12 - conduct endangering persons and summary Charge 16 - unlicensed driving.
28Police activated their lights and a further police unit positioned itself in front of your vehicle. As the vehicle turned towards the footpath, the police vehicle that was following forced the rear of your car to spin 90 degrees and come to a stop. Police members exited their vehicle and told you to get out of the car. You remained seated so you were pulled from the vehicle. Police were required to use OC spray to place you under arrest. And that is summary Charge 21 - resist police.
29Police conducted a search of the vehicle locating various items including two knives and that is the subject of summary Charge 22 - possession of a controlled weapon, and a number of pairs of sunglasses in cases. Summary Charge 27 - deal with property suspected as proceeds of crime.
30You were transported to Geelong police station where police seized your clothes including a North Face vest and the Nike 270 shoes. You were formally interviewed but largely denied the offending.
31You have been in custody, being held on adult remand since your arrest on 21 March 2020. You indicated a plea of guilty to the charges on indictment at committal mention hearing at Melbourne Magistrates' Court on 9 October 2020 and the prosecution concedes it is an early plea of guilty.
32Charges 9 and 11, the charges of armed robbery, are both Category 2 offences because they were committed after 28 October 2018 and in circumstances where the offences were committed in company with one or more persons and as such, in relation to those two charges the court must make an order under Division 2 of Part 2, other than a sentence of imprisonment in addition to making a community corrections order in accordance with s.44 unless the court is satisfied that one of the sub‑sections of s.5(2H) is in existence.
33No reliance has been placed on any of the exceptions by your counsel, Mr Barrera.
34You have admitted a prior criminal history and there are six previous attendances at Geelong Children's Court and two attendances at Geelong Magistrates' Court. Your history shows that you first appeared before court as a young child in relation to various matters including thefts, thefts of motor vehicles, burglary, offensive behaviour, various dishonesty offences, some driving‑related offending including unlicensed driving, criminal damage, deal with property suspected proceeds of crime and there is an occasion when you were dealt with in relation to a charge of home invasion when you were aged 17.
35You have been dealt with by way of without conviction fines as well as probation and you were placed on a community corrections order by the Geelong Magistrates' Court on 14 January 2020 for a period of 12 months. This offending occurred during the currency of the operational period of the community corrections order and contravenes a core condition of the order. This reflects poorly on your rehabilitation prospects and contravention proceedings are yet to be dealt with.
36Furthermore, you committed the offending whilst you were on bail and that is another aggravating feature of the offending. There are some outstanding matters that are yet to be dealt with in the Geelong Magistrates' Court.
37Mr Kennedy, the offending is serious involving a it does a spree of offending committed in company with Jones. I consider your roles to be equal and your offending would have no doubt had an impact on all of the respective victims in these crimes.
38Elizabeth Duka is the only victim who has provided a victim impact statement, but common sense does dictate that those others would have been inconvenienced and upset by your actions particularly those who were the subject of the armed robberies.
39Elizabeth Duka details a significant impact of the offending upon her. She was shocked and angry and hurt by your actions. She now feels very uneasy and vulnerable in her own home and very traumatised by the experience. She wakes regularly at night whenever she hears any noise, instantly thinking somebody is in her home and she is very fearful.
40Through your actions, you have caused her great upset and she has been also severely inconvenienced having to replace all her locks ‑ ‑ ‑
41I have had regard to your personal history and background. You were born in Geelong and you are the youngest of seven children. You parents raised you in the Geelong area. Your parents separated when you were 10 and thereafter you continued to live with your mother. You have very good relationships with all your family members. You left home at age 18 to live with a partner.
42Tragically, you have suffered the loss of a maternal aunt in 2016 and also your mother in August 2019 and you have not coped with their deaths and that has been difficult for you. In addition, since you have been in custody, you have lost an uncle in December 2020.
43You have successfully completed a Certificate II in automotive vocational preparation. You left school after Year 8 to complete that trades program. You successfully worked at Air Radiators, Lara for two years until you were 18. And there is the possibility of the prospect of re-employment with Air Radiators in the future.
44You have a long history of drug abuse and have been abusing methylamphetamines from a young age and that escalated following your mother's death. In addition, you have abused GHB and Xanax. The motivation for your offending is so that you could obtain money to purchase drugs.
45You have been diagnosed with attention deficit hyperactivity disorder from about age six and you were prescribed stimulant medication. That continued up until your current incarceration. You have not been taking medication but it has been reported that you are nonetheless still doing well without medication.
46I had regard to the contents of Dr Aaron Cunningham's report of 2 December 2020 and I accept his expressed opinion. You do not meet the criteria for a mental illness. He describes you as being relatively immature and a moderate risk of violent reoffending. He reported a relatively stable childhood with no indication of abuse or trauma and that you have good relationships with all your family.
47I have had regard to the letter prepared for the court by Andrea Kennedy, your older sister, that confirms your history and background and the significant difficulties that you have experienced following the very sudden loss of your mother in 2019. You are fortunate that you enjoy close relationships with your siblings and they have all indicated their willingness to support you and to allow you to live with them when you are eventually released.
48You are in a relationship currently with Shenae Gatt and she is very supportive of you.
49Dr Cunningham recommended drug and alcohol counselling and he also stressed that it was important that consideration be given to placing you in a youth detention facility because of your age and relative immaturity. He said that would give you access to a wider range of vocational educational programs and there was a risk that adult incarceration would lead to further indoctrination into a criminal mindset. I do accept that expressed opinion wholeheartedly.
50Ceasing abuse of drugs and association with drug-abusing peers, re-engaging with the workforce and maintaining stable accommodation, he says, would reduce your risk and improve your prospects of rehabilitation. I endorse those remarks as well.
51Following your remand, you have been held in adult custody predominantly at Melbourne Remand Centre, but also for a time at Marngoneet. Whilst at Marngoneet you worked in the kitchen.
52I accept that the COVID-19 pandemic has had a significant impact upon you, having regard to the fact that you have not been able to have face-to-face visits and there has been significant curtailment of programs being undertaken in the prisons during this time, and also significant times when you have been held in lockdown, as well as being restricted in terms of being allowed out of your cell.
53This is your first time in adult custody and I accept that it has been difficult and onerous for you.
54In formulating your sentence I have had regard to the fact that the plea was entered at the earliest practicable opportunity at committal mention stage and you have facilitated justice and there is real utility in your plea, so the sentence will be discounted accordingly.
55I accept that you now accept responsibility for your conduct and you are genuinely remorseful and that is reflected in the remarks of the pre-sentence report where you have demonstrated that you do acknowledge that what you did was wrong, and you take full responsibility for your offending, plus you feel sorry for the victims and would not like what happened to them to happen to you, and you accept that your offending behaviour is not acceptable.
56Your sister's letter details since you have been in gaol you have been open with her, talking about the possibility of rehabilitation and a willingness to continue to address the underlying conditions that led to your drug addiction, including the grief issues. You want to get back to working and to be a more law-abiding and respectful person.
57I have noted that the offending was committed whilst you were on bail and also during the operational period of the Community Corrections Order and that, of itself, is not a very good indication of your rehabilitation prospects, but I consider that overall you do have reasonable prospects of rehabilitation, having regard to your age; the fact that you have positive family support, in particular from your older siblings; the fact that you have previously completed the vocational educational courses successfully; held employment at Air Radiators, with the possibility of you returning to them upon your eventual release.
58There has been no history of previous custodial sentences and you were successful in completing the good behaviour bonds and probation orders that were imposed when you were younger. All of that means that I do consider that you have reasonable prospects of rehabilitation. You will need to address your underlying drug taking behaviours and also you will need to establish more prosocial peers when you are released, but there are real prospects for you in the future, provided that you do adhere to your expressed willingness to want to work and be more law abiding and be a more respectful person.
59You have been abstinent from drugs since you have been in custody and that is significant, because you started commencing use of drugs when you were only aged 13. I know it has escalated, in particular since your mother's death, but I do consider that in the event that you are able to cease using drugs, that you do have good prospects. There is a link between your drug use and addictions and the commission of these offences.
60Mr Barrera initially sought a deferral of sentence on your behalf, so that you could complete the Odyssey House rehabilitation program. However, as expressed to him, on the previous occasion, given the gravity of the offending, I did not consider that this was an appropriate option.
61You were assessed as to your suitability for a Youth Justice Centre order and that report says that you are not suitable. However, there have been lengthy discussions this morning and I do consider that that is the most appropriate order, in all the circumstances. In particular, I have had regard to your age, your immaturity and the fact that you have never previously undergone sentence in an adult custodial setting. To continue to have you remain in an adult setting would be corrosive of any prospective rehabilitation prospects you have and just set you up for failure for the future by exposing you to further corrupting relationships with adult prisoners.
62Overall, having regard to the serious nature of the offending and notwithstanding the recommendation, I do consider that a disposition which means you will be detained in the juvenile justice system is appropriate.
63Armed robbery, robbery, burglary and theft are charges that do call for the imposition of sentence that reflect general deterrence and denunciation. In each of the burglaries, attempted burglaries and the armed robberies there was a degree of planning which you committed in company with Jones. I do accept that your roles are equal. The fact that you targeted such young victims and also people who were very vulnerable when you produced the knife, calls for severe condemnation and on behalf of the community I denounce your behaviour.
64The driving, that was the subject of Charge 12, is very dangerous and your conduct endangered not only the police but also members of the public, who were required to take evasive action to avoid collisions. The fact that you have not held a licence in the past is troubling and you have been previously before the court for unlicensed driving is noted.
65In formulating the appropriate sentence I have had regard to your youth, and I have moderated the sentence having regard to the principles enunciated in the case of Mills.[1] General deterrence and denunciation have been moderated to a degree in favour of rehabilitation. Nonetheless the offending is serious, particularly the armed robbery and the robberies and the conduct endangering persons, and therefore, denunciation and deterrence and protection of the community are still prominent sentencing considerations.
[1]R v Mills [1998] 4 VR 235.
66I have had regard to the factors set out in s.32(1)(b) and s.32(2)(a)-(b) of the Sentencing Act 1991 and I believe that you do have reasonable prospects for rehabilitation. You are a young offender who is particularly impressionable and immature and likely to be subjected to undesirable influences in the adult prison and therefore an order for your detention in Youth Justice will be made.
67As you committed all the offences whilst you were released on bail, the prima facie position is that orders must be made for cumulation, but I propose to direct otherwise. I have had regard to the totality principle and proportionality principle, and I will make formal court orders as follows:
68Charge 1, you will be convicted and sentenced to three months, to be served in Youth Justice detention;
69Charge 2, burglary, three months;
70Charge 3, attempted burglary, three months;
71Charge 4, attempted theft, one month;
72Charge 5, burglary, six months;
73Charge 6, theft, six months;
74Charge 7, attempted burglary, three months;
75Charge 8, theft, three months;
76Charge 9, armed robbery, 12 months;
77Charge 10, robbery, six months;
78Charge 11, armed robbery, 18 months;
79Charge 12, conduct endangering persons, six months;
80Summary Charge 12, convicted and a term of detention of one month is imposed;
81Summary Charge 16, you will be convicted and one month detention is imposed;
82Charge 21, you will be convicted and one month detention is imposed;
83Charge 22, you will be convicted and three months detention is imposed;
84Charge 27, convicted and one month is imposed.
85Charge 11 is the base sentence. That is 18 months and I make the following orders for cumulation. Three months of Charges 9, 10 and 12 will be cumulative upon each other and upon that sentence, bringing the total effective sentence to 27 months detention in a Youth Justice Centre.
86I declare 306 days pre-sentence detention. Finally, I make an order cancelling or disqualifying you from holding any licences in relation to Charges 1 and 4 on the indictment for a period of six months. I make the disposal order sought.
87I believe I have covered everything, Mr Harrison?
88MR HARRISON: Yes, Your Honour.
89HER HONOUR: All right. All right, so that means ‑ ‑ ‑
90MR BARRERA: (Indistinct words.)
91HER HONOUR: Sorry, Mr Barrera, what were you saying?
92MR BARRERA: (Indistinct) s.6AAA declaration or no?
93HER HONOUR: Yes, a s.6AAA declaration. But for your plea of guilty I would have imposed a term of three years and six months Youth Justice Centre Detention. All right.
94MR BARRERA: As Your Honour pleases.
95HER HONOUR: All right, so that means, Mr Kennedy, you will be transferred today and you heard me when I said, they have the authority, the Youth Parole Board, to transfer you back into adult prison in the event that your discipline is such that it requires a transfer. So make the most of the opportunity please.
96ACCUSED: Thanks, Your Honour.
97HER HONOUR: All right, all the best. We will cease the link now and thank you, Mr Harrison and also Mr Barrera, you have both been very, very helpful.
98ACCUSED: Thank you, Your Honour.
99HER HONOUR: Thank you.
100MR HARRISON: As Your Honour pleases.
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