Director of Public Prosecutions v Kennedy

[2019] VCC 184

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

AT MILDURA
KOORI COURT

CR 18-02537

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHACAIN KENNEDY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Mildura
DATE OF HEARING:	19 February 2019
DATE OF SENTENCE:	19 February 2019
CASE MAY BE CITED AS:	DPP v Kennedy
MEDIUM NEUTRAL CITATION:	[2019] VCC 184

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Lew	Office of Public Prosecutions
For the Accused	Ms R. Greensill	Ann Valos Criminal Law

HIS HONOUR:

1Mr Kennedy, you have pleaded guilty to: seven charges of theft; three charges of burglary; three charges of aggravated burglary; one charge of armed robbery; one charge of intentionally cause injury; one charge of attempted burglary; one charge of attempted theft and one charge of trafficking cannabis.  The cannabis was a small quantity and has no real significance in this sentencing process.

2Most of those crimes carry maximum penalties of ten years or 15 years.  The two most serious obviously are the aggravated burglary charges, which carries 25 years, and the armed robbery charge, which carries 25 years, albeit that one aggravated burglary and the armed robbery occur in the same instance.

3You are now 18 years of age.  At the time of this offending, which all took place over a period of around about four days and therefore constitutes a series, you were only five weeks out of the Children's Court.  Had this behaviour occurred a couple of months earlier you would have been dealt with in the Children's Court and it may well have been a different length of disposition certainly.  I take into account that fact.  Your two co-accused out of all this are going to be dealt with in the Children's Court and, accordingly, at the moment there is no parity but I am aware of your age and the proximity to that jurisdiction.

4You do have prior criminal convictions and they are of some concern.  I accept in this situation that you have shown appropriate remorse and, indeed, having witnessed you dealing with the elders in Koori Court, and I think that remorse is profound, and is accompanied by a deep sense of shame.  You also, of course, get the utilitarian benefit of that plea of guilty.  Some of these matters may have been difficult for the Crown to prove had you decided  to fight them out and, accordingly, that displays not only remorse but a desire to get the matter over and done with.

5A summary of the offending is contained in a lengthy Crown opening, understandably in these circumstances and I annex that Crown opening to these, my sentencing remarks, rather than go through it in detail.

6In short, you just turned 18 at the time of the offending, which all occurred in late August 2018.  You and others who were known to you, one being, I think, 17, and one being at 15, went, effectively, on a rampage:  Robinvale, Shepparton.  You stole cars, you tried to steal cars, you stole things, broke into houses and generally misbehaved.  On one occasion you were wearing balaclavas and that really does concern me.  It was not a joke and it was continued ongoing offending.

7The most serious of the matters involve aggravated burglaries and on one of them you and another made your way into a house in Bridge Way.  The door was unlocked and there were three women present, as I understand it.  You and your co-accused had already stolen a bottle of champagne from another premises.  It was left in the garden and you went inside the house.  A set of keys was located and then the pair of you went to the bedroom where a Ms Zang was sleeping.

8You both entered the bedroom.  Your co-accused, I accept, placed his hands over her mouth to prevent her from screaming.  She awoke and the co-accused told her, "Don't yell, keep quiet", followed by, "Give me all your money".  While that was occurring you sat on a chair next to her bed, holding a knife in your right hand.  That is aggravated burglary and obviously a serious example of it.  The two of you demanded that she hand over property and at one stage demanded that she go to an ATM to withdraw additional money.

9She managed to get outside of her bedroom door and yelled out to her friend or for assistance.  The pair of you then pushed her to the ground.  She was punched to the head, causing injuries to her face.  The two of you then ran out of the house with a handbag, an Apple watch MacBook, iPad2, iPhoneX and a wallet.  She chased you for a short distance before returning home and contacting police.

10The aggravated burglary is, as I have indicated, is a serious example and the whole situation is compounded by the fact that this woman posed absolutely no threat to either of you and yet she was subjected to gratuitous violence in circumstances where she must have been terrified.  There is no victim impact statement from anybody in that house but I do not need a victim impact statement to explain to me how scared they all would have been.

11After that there is an attempted burglary next door and again, attempted thefts, car theft and the like.

12The next matter that I will actually summarise, occurred at Nulty Drive in Robinvale where a Mr Fein resided.  At the time you and your co-accused entered the property.  He and his six children were all asleep in bed.  You gained entry via the unlocked front door then made your way to the kitchen where you removed four sets of keys.  The keys stolen by you two included keys that provided access to the locks on the house, the shed and two vehicles parked in the driveway.  There was then an attempt to, it would appear, steal a vehicle, and another attempt to steal a vey belonging to Mr Vumano.  That situation gives rise to aggravated burglary and, as you must now appreciate, what could have occurred had any of those children woken up and their father woken up is anybody's guess.

13Again, later on, at approximately 6 am you and your co-accused went into a house in Wilson Court in Robinvale.  A Rohan Broad was staying with his sister.  He heard footsteps and thought it was his sister or a partner walking around so went back to sleep.  On waking later that morning he approached his sister, asking what she was doing walking around at that hour of the morning.  She replied that she was not, nor was her partner.  It was at that point in time that they realised that the key was missing and an aggravated burglary had taken place.  When you were arrested by police you admitted to the drugs but effectively, as is your right, on the other matters.

14You were remanded for these matters and have now been in custody for 175 or 176 days and that remand occurred on 28 August 2018.

15On 13 December 2018 you were sentenced to six months' youth detention in the Magistrates' Court and - or Children's Court, I am not sure which, does not make any difference, and that was not declared.  Accordingly, since that day you have been undergoing a six months' Youth Justice sentence.  I take that into account and I am going to order, as I indicated, that the Youth Justice sentence that I impose be served concurrently with it.  Obviously therefore a period of something in the order of 60 days has been served already before you commence my sentence.

16In this matter you appeared in Koori Court and you dealt with it, I thought, quite courageously.  Your offending is shameful, as Uncle Mark pointed out to you, but you were prepared to own up to what you had done.  I was impressed by the remorse that you now show about the shame of what you have done and also impressed by your determination at your endeavour to turn your life around.  As the elder said to you, that is often said in Koori Court and not always complied with, but I do believe it and I am sure that with the good family support, or very good family support that you have, that it is certainly possible for you, to have been without substances for that significant point of time has been of great assistance.

17The offending, however, is serious indeed.  Of course the application of general and specific deterrence as well as denunciation, and obviously, which is the most difficult task in many of these matters, an appropriate punishment.  Adult gaol, in my submission, is just simply not applicable.  You did 175 days in adult gaol when it could have been YTC had it been transferred.  At the age of 18 I am a bit surprised that did not occur but nevertheless it did not.

18Adult gaol for an 18 year old is a far, fare greater punishment than youth detention and accordingly I make an allowance for the fact that so much of this sentence has been done in an adult environment.  That is not a mathematical equation but it is certainly appropriate to be aware of it in this set of circumstances.  You, as I say, are determined, I will go through your history very briefly in a moment, and the prospects of your rehabilitation at the moment are good.  Entirely up to you.  The risk of you reoffending if you commence substance abuse on release is high indeed but if you are able to remain substance free then the risk of you reoffending should be relatively low.

19Succinct submissions were made on your behalf.  You are a young Aboriginal man.  You were born in Mildura and you grew up in Robinvale.  You are the third of seven children.  There was extreme violence in the family home and that has been confirmed by Uncle Mark, who was aware of those circumstances.

20You at one stage went to live with your father, who was in Echuca at that point in time.  You have an IQ of 75, which speaks for itself.  You commenced your drug use very early, smoking cannabis as early as you were nine and ice by the age of 13.  You used unprescribed drugs such as Valium, you used Seroquel to sleep and you have used other drugs as well.  It is put in the submissions at the time of this offending you were under the influence of ice.  I accept that that is the case but, clearly, you were aware of what you were doing and it does not ameliorate the seriousness of it.  It simply puts it into a context.

21The maturation process is just starting to take place with you, I think,
Mr Kennedy, and you describe what you do as being young and being dumb.  You have got into the senior league of crime at a very early age.  It is going to be a matter for you whether you can stay out of gaol or whether you, as unfortunately happens, spend the rest of your life locked up.

22You have a child, you have a girlfriend, you have strong family, you have got everything going for you.  You are clearly physically fit, you are good at sport and there is no reason why you cannot play sport.  There is no reason why you cannot work and you have indicated that that is something that you really do want to do and that you would like to do that, have a car, a house and look after a family.  They are laudable aspirations indeed.  There is a psychological report from Mr Healy before me and it simply, I think, reflects the immaturity of all this and the difficulties in life that you have had.

23Obviously you have been found suitable for Youth Justice, and I think you are the perfect example of it at the table as informed by a member from Youth Justice that you have done well in Malmsbury, that you were complying with the directions or authorities and doing everything you can to better yourself.  I am very reluctant to do anything which would put in place any sort of hindrance to that development of your personal life, but the fact of the matter remains, as I have indicated, it is serious offending and appropriate punishment has to be imposed.

24So in all those circumstances on the charges, that you are sentenced to be detained in a Youth Justice Centre for an aggregate period of two years and six months.  I direct that that sentence be served concurrently with any sentence presently being undergone.

25I direct that 107 days be reckoned as having been served under that sentence.

26Pursuant to s.6AAA of the Sentencing Act I say that but for your plea of guilty I would have sentenced you to be detained in a Youth Justice Centre for a period of three and a half years.  So it is two and a half starting now with 107 days declared and they will explain to you when the opportunity to parole arises and when the opportunity for work release arises.

27Are there any other orders I have to make?

28MR LEW:  Your Honour, there was - yes, Your Honour.  There was just the disposal.

29HIS HONOUR:  I have signed that.

30MR LEW:  yes, Your Honour.

31HIS HONOUR:  Nothing else?

32MR LEW:  Nothing else.

33HIS HONOUR:  Yes, all right.  Do you want to talk to him here, Ms Greensill or do you want to talk to him over the - - -

34MS GREENSILL:  I have got to go over there later.

35HIS HONOUR:  All right. Well, I will tell you, you can take him.  She will come and see him now.

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