Director of Public Prosecutions v Kennedy

[2018] VCC 815

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

AT GEELONG
CRIMINAL JURISDICTION

CR 18-00642

DIRECTOR OF PUBLIC PROSECUTIONS

v

DWAYNE KENNEDY

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	1 June 2018
CASE MAY BE CITED AS:	DPP v Kennedy
MEDIUM NEUTRAL CITATION:	[2018] VCC 815

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Goodenough	Office of Public Prosecutions
For the Accused	Ms A. Hancock

HIS HONOUR:

1Once again, this court is called on to sentence a young man who did not respond well to the ending of a relationship.  Once again, a private home is invaded with a deplorable display of violence.  A woman and her new partner are set upon by a drunken ex-partner endeavouring to assert his misguided sense of entitlement.

2You, Dwayne Kennedy, were in a relationship with the female victim for about four years.  You had a daughter together and you acted as the father to your ex-partner's older daughter.  However, the relationship ended in early 2016.

3The female victim befriended the male victim and they were residing together.  There were children living with them as well.  The male victim had two young boys and as mentioned, the female victim had her two daughters with her, although not present it seems when the offence was committed.

4At the time of your crimes, the female victim was in the early stages of pregnancy, though I do not understand that you knew that fact.

5At a point after your relationship with the female victim ended, she obtained a family violence intervention order against you.  Conditions of the order prevented you from going to or approaching her home or communicating with her or going or approaching within 5 metres of her.  The family violence intervention order was operative at the time of your offending.

6On 27 October, at around ten in the evening, you went to where the victims were living.  You were in the company of your brother, Connor Kennedy and your girlfriend, Shae Cole.

7When you arrived, you first screamed aggressively for the male victim to come outside.  The female victim, your ex-partner, having heard you, went to where you were outside to try and calm you down.  She saw you were holding a metal pipe, which she thought at first was a gun, especially as you raised it up and pointed it in her direction.

8You then screamed again for the male victim to come out, saying that you were going to smash him.  In terror, the female victim ran back to the house, locking the door behind her.  You chased after her, going to the laundry door.  You then kicked it with great force, causing it to open.  You then ran inside with your weapon, the metal pole.

9The female victim, in great fear, told you to get out, but you had other ideas.  You went straight for the male victim, punching him in the face, causing him to fall and then in a display of cowardice, you then continued to punch him to the face while he was down.

10The female victim had run out the front where she was abused by your brother.  You also came out of the house and purported to justify your actions by saying to the female victim that the male victim had got what he deserved.  Then, in an act revealing your weak and cowardly character, you then head butted the female victim to the nose, causing her to fall to the ground.  I will return to this act of gratuitous violence towards a helpless female shortly.

11You then drove off with your brother and your girlfriend.  The victims left the house out of fear.  The female victim went to a nearby friend and called the police.  The male victim took his two young boys to his father's house from
2 kilometres or so away.

12Despite this, 30 minutes after your brutal home invasion, you tracked the male victim down.  You screamed out and went to the front door of the premises where his father lived.  The victim was able to force you back.  Then you and your brother, in a mindless display of violence, set upon the victim's father's car using the metal weapons or using metal weapons to smash every window and panel on the car.  Thereafter, you all drove off.

13The police arrested you later that evening.  You displayed violence and aggression, including racist aggression at the police station.  After being charged and remanded, your lawyers endeavoured to negotiate a plea, but that was not successful.

14A committal was fixed and the witnesses were brought to court, but at the door of the court of the committal, you pleaded guilty.  That was on 26 March 2018.  That is, some five months after the offences.  However, I note the Christmas close down was operative through that period.

15You have been on remand since your arrest, but you served a sentence imposed by a Magistrate during that period of remand.  The number of days that can be declared as part of any sentence that I impose has been reckoned as 168 days.

16The charges you pleaded guilty to were aggravated burglary, criminal damage to the house where the female and male victim, and criminal damage to the father's car.  You also pleaded guilty to common assault of the male and the female victim.  In addition, you have pleaded guilty to the following summary offences, being the breach of a family violence intervention order, acting in a manner prejudicial to the good order of police gaol by assaulting an emergency worker and by committing offences when on bail.

17Before dealing with the obvious gravity of your crimes, I pause to make clear that there was adverse impact on the victims, and it has been significant.

18The female victim in her victim impact statement spoke of not being the same since you put her through this ordeal.  She is unable to be sociable with people.  She has intrusive flashbacks and does not feel safe anywhere.  She is easily startled and falls into anxiety attacks.  Of note is that she had to leave the house and became homeless.

19I am required by the Sentencing Act to assess the gravity of your offences.  What makes this a particularly serious example of the crimes that you have pleaded guilty to are the following matters.

20This was a retributive invasion of a private home, at night, in circumstances where you breached a court order granted to give protection from you to the female victim.  You were armed with a dangerous weapon, though it was not alleged that you used it beyond as a threat.  Although those you were with did not enter the house or become involved in the aggravated burglary or assaults, they were there boosting the numbers and adding, no doubt, to the fear that was created by you.

21The enabling offence of aggravated burglary was committed with real violence as you kicked the locked door, that is, the laundry door down.  This all came after the female victim, a person who you say you cared about had tried to get you to see reason and leave.

22Another aggravating aspect of your crime was that there were young children present and as you knew, there probably would be.

23Once in the house, your violence punching of the male victim while he was down and unable to fight back is a matter of concern.

24But as mentioned, the concerning aspect of your behaviour was your completely unnecessary head butt to the female victim outside.  Oddly, you have instructed your lawyers that the reason why you went to the house and committed these frightening attacks was that you had heard that the female victim was the subject of violence by the male victim, which was, so you say, effecting your children who were living there.

25So your response was to go to the house, kick in the back door or the laundry door, commit brutal violence in front of children and then leave, giving a head butt to the woman who you were making a stance against the violence that she had sustained.  That is, you were making a stance against violence to women.  Your way of doing it at the time was to head butt the woman you say was the victim of domestic violence.

26Your explanation is of no mitigatory value.  To the contrary, to take the law into your own hands and commit the same sort of violence you say you were against, reveals a lack of a moral compass.

27You instruct that you began the day of your offending by going fishing with your brother.  You drank excessively.  In this intoxicated state, you became angry and decided to confront the victims, in particular, the male victim.

28Being drunk is no excuse.  In fact, given that you have, in the past, committed violent offences while drunk and have been made aware of the risk that you pose when you become violent, the fact that you were intoxicated is concerning rather than mitigatory.

29Although you are young, just 23 and 22 at the time, you have some concerning prior convictions.  At the time of these offences, you were the subject of two court ordered community corrections orders.  One was for committing a crime of recklessly causing injury, which I note, as I have been told, that you were drunk at the time.  What I was told is, this was an assault causing injury to another passenger on a bus.

30It would seem that your effort on the community corrections orders were sporadic.  You started reasonably well, but the reports provide me some but not a lot of confidence that you learnt much from your earlier crimes, and that you took up the benefit provided to you, that is, the sentences that sought to facilitate your reform.  As noted, you were back before the courts for breach of those community corrections orders and sentences of imprisonment were imposed while you were on remand.

31You were not only on two community corrections orders at the time, but you were on bail.  You were on bail for crimes of dishonesty and driving offences at the time of these offences.

32These court orders, all of which were breached, make your offending more serious as I have indicated.  It makes specific deterrence more weighty.  Also, your prospects for reform are likewise diminished.

33As to your personal circumstances, you are, as noted, just 23 now.  Your young age remains important.  Endeavouring to have you reformed is in the interests of the community, as well as you, as you have many years ahead.  However, as the authorities make it clear, emphasis on rehabilitation must yield when the crimes are grave and the offender is not a first time offender.

34Thus, in your case, denunciation, general deterrence and specific deterrence and protection of the community remain important sentencing purposes.  But again, I make clear that your rehabilitation remains important and I have endeavoured to establish conditions that facilitate your rehabilitation.

35Your counsel, in a comprehensive plea, submitted that one of, if not, the principal problem that you suffer from and have for quite a number of years is your excessive drinking.

36Just this morning, I have discussed with counsel what was set out in a psychiatrist report that was provided to me.  That report being dated in 2016.  Your counsel did not urge that I place much weight on the psychiatrist opinion, but rather, I should consider the report for the outline of your background and the like.  This morning it has been made clear that what was said to that doctor relating to the consumption of alcohol was a serious underestimate of the problem that you had.

37It seems that you did drink very much more than you said to Dr Deacon.  It got to the point where you went to an alcohol and cannabis detoxification unit in September of 2016 for a week.  That is very much to your credit.  You then abstained from drinking, again to your credit, up until the day of your offending.

38You need to do something about your drinking.  You have acknowledge that in letter that you have provided to me today.  I have taken into account what you have said as to your resolve, and I hope a steely resolve, that once you are released, you will do what is necessary to make sure that you do not take up drinking or drinking to excess.

39Your girlfriend, Ms Cole, who visits your regularly on remand, has urged you to abstain from drinking on release.  As I have said, that seems vital to you staying out of trouble into the future.

40Although Ms Cole was with you on the night, driving you and your brother in your car, it was said that she is a stabilising influence.  She is studying and a non-drinker.  Her support is important.

41I take into account that you do have a commitment to that relationship and that it will be a stabilising influence on you.  I put out of my considerations about that, the fact that Ms Cole was with you on the night.

42You have other support from your family.  Your mother is particularly supportive and she has the care of your daughter and your step-daughter that have been mentioned.

43Your daughter and step-daughter are important to you.  You miss them and I have taken into account that it is difficult for you in custody, as you are coming to a realisation that you should be and can be a better parent.  Let us hope that again, once you are released, that you take up that resolve.

44You grew up in a large family.  You now have a good relationship with your father, who has got you some work time to time on the farm he manages at Werribee.

45Your schooling was difficult.  You had limited work thereafter.

46You have suffered from anxiety, but are coping now in custody with the clinicians that you are seeing, and you are not in need of medication. 

47You have done a course about alcohol abuse in prison and are working and otherwise, you have used your time as best you can on remand.  It is not easy and there are not necessarily as many courses or program available to you as you wish to do.  But it is hoped that you take up what is available to you while remaining in prison.

48Your counsel urged that I not ignore the principles of totality or parsimony, meaning the least sentence that justice allows, and ultimately, your counsel submitted that I should impose a sentence that allows you to do a community corrections order.  This submission was made mindful that you had breached the recently imposed community corrections order.  Again, your letters today emphasise that you will, if you are granted a community corrections order, apply yourself to it.

49The prosecution submitted only a sentence of imprisonment would meet the sentencing considerations given the gravity of all the offences and the orders that you were on, and your past offending.

50While all matters put by your counsel have been factored into the synthesis, what also must be recognised is that our community is heartily sick of violent home invasions brought on by petty grievances.  These crimes are corrosive, making people feel like that are not safe.  Further men like you have to understand that women are entitled to safely form new relationships.  Your sense of entitlement and that of other men who have this, it is no longer to be tolerated.  You and other men who act violently when relationships end and women form new relationships must be left in no doubt that you will be given stern gaol terms if you break into houses with weapons bent on violent retribution.

51The Court of Appeal has, on a number of occasions, emphasised the seriousness of these sorts of crimes and indicated that sentencing judges must pay heed to the long maximum term that Parliament has fixed for the crime of aggravated burglary, as well as paying heed to the community concern about home invasion crimes.  I cannot ignore what has been said by the Court of Appeal, although I keep in mind that cases like Bradshaw v The Queen have restated that incarceration is not always mandated.

52As refereed to, I have kept in mind the principle of totality, but there must be some cumulation.  That is particular so for your wanton attack on the car of the male victim's father.  Your continuing violence after the male victim had tried to escape is particularly serious.

53I need to ensure that you are punished, but not doubly punished for your breaches of the family violence intervention order by reason of you committing the aggravated burglary.

54Your sentence will be less than would have been the case had you pleaded not guilty.  I have taken your plea as indicating you have insight into your wrong doing and have remorse.  Your letters today indicate that you are growing in that insight and have genuine remorse.

55The time of your plea is not at the first opportunity upon perhaps making a confessional record of interview, but it was before any witness was cross-examined at a committal.

56Doing the best I can, I impose the following sentences.  You can remain seated.

57Charge 1, the criminal damage to the door and the premises of the male and female victim.  You are sentenced to three months.

58For committing the crime of aggravated burglary, you are sentenced to three years and three months.

59Committing the crime of common assault on the male victim, you are sentenced to 12 months.

60For committing the crime of common assault on the female victim, you are sentenced to 15 months.

61Committing the crime of criminal damage on the car of the male victim, you are sentenced to 14 months.

62For breaching the family violence intervention order, you are sentenced to nine months.

63For committing the crime of putting the gaol offence, you are convicted and fined $300.

64Committing the crime of committing offences in breach of bail, you are sentenced to one month imprisonment.

65I order that three months of the common assault, Charge 3, five months of the common assault, Charge 4, nine months of the criminal damage, Charge 5 and one month of the summary offence, breach of the family violence intervention order are cumulative upon each other and upon the base sentence, the aggravated burglary.

66This gives a total sentence, and I hope the mathematics is right, of four years and nine months, and I fix a non-parole period of two years and nine months before you are eligible for parole.

67You have already served 168 days that can be reckoned as part of the sentence that I have just imposed.

68I make the declaration that the 168 days that have been reckoned are part of the sentence that I have just imposed and I will ensure that this declaration is entered into the records of the court so that the prison authorities are left in no doubt that you have already served 168 days of the sentence that I have imposed.

69Had you pleaded not guilty to these offences and been found guilty, I would have imposed a sentence of six years and nine months, with a minimum term of four years and nine months.

70There any other orders required?

71MR GOODENOUGH:  There was a forensic sample order sought, Your Honour.

72HIS HONOUR:  Yes, I make the order on the basis of the seriousness of the offences, the prior convictions and it is in the interests of justice that such a forensic sample be obtained.  What that means, Mr Kennedy, is that the authorities will come and seek from you a swab from your mouth so that they can extract your DNA for keeping on a database.  At the time that they come to secure that, they are authorised to use reasonable force to get the sample if you do not cooperate.  The way through it is to cooperate.  Anything further?

73MR GOODFELLOW:  No, Your Honour.

74MS HANCOCK:  No, Your Honour.

75HIS HONOUR:  Thank you.  I will just sign the - is there a 464 form here?  I have explained it to Mr Kennedy.  There is no reason for him to wait while we get the documents, is there?

76MS HANCOCK:  No, Your Honour.

77HIS HONOUR:  Mr Kennedy, the court is not set up so you can spend any time with any of those that are here who care for you.  Hopefully they will be able to see you fairly speedily.  You will have to go downstairs now.  Thank you.

78I will not stand down, but Ms Hancock, thank you for all your assistance in respect to this matter and the delays that you had to confront. 

79MS HANCOCK:  Thank you, Your Honour.

80HIS HONOUR:  Thank you.

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