Director of Public Prosecutions v Kennedy

[2018] VCC 1769

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR-18-00269

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL KENNEDY

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Shepparton (31/7/18)
DATE OF HEARING:	31 July 2018
DATE OF SENTENCE:	30 October 2018 (at Melbourne)
CASE MAY BE CITED AS:	DPP v Kennedy
MEDIUM NEUTRAL CITATION:	[2018] VCC 1769

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director	Ms A Bai (31/7/18) Mr A Cecil (30/10/18)	OPP
For the Accused	Mr A Marshall	Mario Vaccaro, Solicitor

HIS HONOUR:

1       Michael Kennedy, you have pleaded guilty to one charge of aggravated carjacking.  This offence has a maximum penalty of 25 years' imprisonment.  It also has a mandatory non-parole period of not less than three years unless a special reason exists.

2       The offence occurred on 9 November 2017.  Approximately one week earlier, you had been released from a prison in New South Wales where you had been undergoing sentence on an unrelated matter.  Upon your release you returned to the Albury area and commenced using ice heavily.  You used the drug over a period of seven days. You were not sleeping and you also used some heroin and alcohol.

3       On 9 November, you were in a fragile psychological state.  Your mother was concerned for your welfare and called the police.  You were subsequently taken by ambulance to the emergency department of the Wodonga Hospital, where you were seen by a doctor who noted that you were not aggressive or agitated.  You denied being suicidal or a threat to others.  At about 10.10 pm you left the hospital saying that your mum would pick you up.  

4       You walked to the home of an acquaintance in Schlink Street Wodonga, knocked on the door and spoke to the male occupant.  He thought you were distressed and offered to call a taxi for you.  He gave you a glass of water while waiting for the taxi.  When the taxi arrived, he gave you $20 for the fare.

5       You told the taxi driver to go to Lavington and offered $21 prepayment.  The driver said that was not enough and you told him to drive until the meter got to $21.  As you neared the central business district of Wodonga, you told the driver to pull over; he did so.  You then removed a large kitchen knife from your pants and pointed it towards him.  You angrily told him to get out of the taxi; he did as you asked.  As he did so, he tried to remove the ignition key but he was unsuccessful.  The key snapped off.

6       You climbed into the driver's seat and the victim opened the rear door in an effort to stop you driving off.  You got out of the taxi and pointed the knife at him and said, "I'm going to kill you, I'm going to stab you."  The victim ran towards the police station and you initially followed him before returning to the taxi and driving away.

7       The matter was reported to the police and they commenced using the GPS tracking system to follow your course.  You drove erratically and at high speed.  Near the corner of Kiewa and Hovell Streets in Albury you stepped out of the taxi while it was still moving and it continued forward until it collided with a power pole causing damage to the taxi and the pole.

8       You were arrested on 13 November 2017 in Albury and later the same day extradited to Victoria.  You have been on remand ever since.

9       Clearly, this is serious offending.  You chose a soft target, you were armed with a knife and you behaved in a threatening manner.  Although no victim impact statement has been provided, I have no doubt that what the victim told the police, namely that he was very scared and thought that you were going to stab him, is true.  In this case, general deterrence is a central sentencing consideration.  Just punishment and denunciation are also relevant.

10      The fact that you were abusing drugs at the time of the offending and that your thought processes may have been compromised to some extent as a consequence, provides no excuse for your behaviour.  

11      You have a number of relevant prior convictions.  Your adult appearances commence at the Albury Local Court in April 2003 with a charge of assault police.  Between that date and the 3 October 2017 there are 23 further appearances in the Albury Local Court or the Wagga Wagga Local Court.  Of particular relevance are the appearances in February 2006 for maliciously inflicting grievous bodily harm, September 2008 for assault occasioning actual bodily harm, and August 2014 for reckless wounding.  You also have an appearance at the Wodonga Magistrates' Court in April 2017 for a large number of offences, including resist an emergency worker on duty.  You have served many terms of imprisonment.  Your criminal history means that specific deterrence and community protection are also important sentencing considerations.

12      I now move to those matters relevant to your background and matters in mitigation.

13      You are a 33-year-old Aboriginal man.  Dr James Belshaw from Forensicare has assessed you.  He has provided a report that sets out matters relevant to your background.  In summary, your childhood and adolescence were marked by hardship and deprivation.  Your parents separated prior to your birth and you have had minimal contact with your father.  Your mother's circumstances were difficult and you went into foster care when you were five years old.  You moved between different foster placements.  You told Dr Belshaw that you suffered sexual abuse and physical abuse in some of those placements.  It is obvious that during these years you were not offered the love, care and stability that are essential prerequisites to a child's proper development.  By the time you were 12 years old, you were living on the streets, your participation in education had ceased and you were exposed to the use of cannabis and alcohol.  Over time, your drug and alcohol problems became more severe and inevitably, criminal offending followed.

14      You told Dr Belshaw that you were a heavy drinker until the age of 27, when you graduated to illicit substance abuse.  You commenced abusing 'speed' and then moved to the drug ice.  You were a heavy user of that drug at the time of this offending.  Dr Belshaw opines that the abuse of substances and your related intoxication, together with long-standing social disorganisation, best explains your offending.

15      He also expresses the opinion that you do not meet the criteria for a depressive disorder, an anxiety disorder or a serious mental illness.  However, you do meet the criteria for alcohol use disorder, cannabis use disorder, opiate use disorder, and stimulant (amphetamine) use disorder.  He notes that it is possible, given your history of drug abuse, that you have an acquired brain injury.  

16      Your disadvantaged background is a matter that mitigates sentence.  However, it must also be acknowledged that because of your background, you have found it enormously difficult to address your substance abuse and stop offending.  In these circumstances, I must balance the mitigating factor of your background circumstances against the weight to be given to community protection.

17      You have entered an early plea of guilty.  It is an acceptance by you of responsibility for your offending.  It has saved the victim from the trauma of giving evidence, and also saved the community the cost and expense associated with a criminal trial.  You will be given credit for all these matters.

18      You consented to having the charges heard in the Koori Court.  In doing so, you agreed to participate in a process that involves appearing before elders from the Koori community.  The process is described as a "sentencing conversation."  It was apparent from your participation in the process that you do have some insight into the problems in your life that you need to address and that you do have a desire to try and address these problems.  It is in your favour that whilst in custody you have undertaken a number of courses, including Aboriginal Wellbeing Programs and the Gambler’s Help Education Program.

19      I give you credit for your participation in the Koori Court process.  The Court of Appeal has recognised that the "sentencing conversation" in the Koori Court is designed to "further the reformation of an Aboriginal offender."[1]  Participation in the process is not easy.  Indeed it is challenging and your participation in the process is a factor that is relevant to sentencing.

[1] See The Queen v Steelie Morgan [2010] VSCA 14 at page 11.

20      Given your inability in the past to control your heavy use of drugs and alcohol, and given the offending that has flowed from that, I am guarded about your prospects for rehabilitation.  I accept that you now express a desire to try and change your behaviour.  Your mother, who has offered you her support over the past few years, has made it abundantly clear that she is not prepared to maintain her support unless you reform.  I was told that you also have a strong desire to reengage in the lives of your three children. Currently, you are unable to see them.  This is understandable, given your history of drug abuse and criminal offending.  You could only become involved again in the lives of your children if you were drug free and stopped offending.  Perhaps these matters provide powerful incentives for you to change your life.  However, it must be said that you have been given opportunities in the past to change your behaviour and you have not been able to do so. 

21      On the charge before the court, you are sentenced to be imprisoned for four years and six months.  I fix a minimum term before you will be eligible for release on parole of three years.  I declare 351 days pre-sentence detention.

22      If you had pleaded not guilty and been found guilty after a trial, I would have sentenced you to six years' imprisonment, with a minimum term of four years and six months.

23      All licences are cancelled and you are disqualified from driving for a period of 12 months.

24      I make the disposal order sought by the prosecution.  Is there anything else, gentleman? 

25      COUNSEL:  No, Your Honour.

26      HIS HONOUR:  Thank you.  Mr Kennedy can be removed, thank you. 

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