Director of Public Prosecutions v Kennedy

[2017] VCC 1828

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

AT BAIRNSDALE
CRIMINAL JURISDICTION

CR 16-01015

DIRECTOR OF PUBLIC PROSECUTIONS

V

BRIAN KENNEDY

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Bairnsdale
DATE OF HEARING:	28 November 2017
DATE OF SENTENCE:	5 December 2017
CASE MAY BE CITED AS:	DPP v Kennedy
MEDIUM NEUTRAL CITATION:	[2017] VCC 1828

REASONS FOR SENTENCE
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Subject: Criminal law -  sentence
Catchwords: Koori Court - Plea of guilty recklessly causing  serious injury – two summary charges failure to appear whilst on bail  and breaching condition of bail -  complainant  was a friend – excessive alcohol consumed  - complainant suffered serious head injuries – quality of life is likely to be poor – defendant suffered physical and sexual abuse as child -  placed in State care -  bipolar effective disorder -   drug and alcohol abuse – possible acquired brain injury  - long periods in custody –possible institutionalisation -  superior skills as an artist – remorse – good prospects of rehabilitation.
Legislation Cited: s 44 Sentencing Act
Cases Cited: Younger VR [2017] VSCA 199
Sentence:  725 days (665 days pre-sentence detention) 2 year Community Correction Order with 100 hours.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Mahady	Office of Public Prosecutions
For the Accused	Mr B. Newton	Daniel Taylor Lawyers

HER HONOUR:

1Brian John Kennedy, you have pleaded guilty to one charge of recklessly causing serious injury.  The maximum penalty for that offence is 15 years' imprisonment.

2You have also pleaded guilty to two summary charges, failing to appear whilst on bail, and breaching a condition of bail by contacting the victim.  The maximum penalties for those two offences are two years' imprisonment for breaching bail, and three months for contacting the victim.

3The injury charge arose from a confrontation on 26 September 2015, with your friend, Daryl Rhys Callender.  That day you had been drinking alcohol at your house in Cann River since 11 am, and Callender arrived there at about
3 pm, and you continued drinking with him for about two hours.

4Callender decided to go home, but you became aggressive and threatening, telling him to shut up, using abusive language, saying he was not to leave.  When Callender repeated that he was going home, you stood in front of where he was seated and punched him about six times to the left jaw area and the chest.  Callender did not resist or fight back.  He eventually left, suffering from a sore face, sore chest, and a headache.

5The following day, you went to his house, and the two of you again drank alcohol.  Around 5.20 pm, a mutual friend, Shirley Edgington, came to the house and saw Callender's swollen face.  He asked her to leave, and she did so, telling Callender she would ring him later.

6She rang him that evening at about 8.30, and he asked her to call an ambulance.  She did so, and then went to his house, where she heard you shouting, and on entering the house she found Mr Callender falling in and out of consciousness.  He was taken to hospital, where he was treated conservatively for a subdural haemorrhage. 

7He was discharged after five days, but was re-admitted a few days later, requiring emergency right craniotomy surgery, and he remained in hospital for a further week.  He was admitted to hospital again on 9 February 2016, due to cerebral fluid leaking from a failed bone graft.  It appears from the medical notes that Mr Callender had further surgery in May 2016.

8In September 2016, Mr Callender wrote a victim impact statement, in which he stated that he was to have further surgery in October 2016.  A forensic pathologist, Dr Jason Schreiber, prepared a report based on documentary material made available to him in April 2016, before the surgeries of May and October, and in that report Dr Schreiber stated that Mr Callender's quality of life is likely to be poor.  There are risks that his pre-existing epilepsy may worsen, and he may have decline in cognitive and other physical functioning.  Indeed, Mr Callender states that he suffers now from dizzy spells, which are preventing him from working, and he has pre-existing depression.

9You were arrested and charged on 6 October 2015, and released on bail on
8 October.  You participated in a record of interview and made certain admissions, and said you felt bad about injuring the victim.

10At the committal mention on 3 February 2016 you failed to appear, and you were remanded in custody on 15 February, where you have remained.  You indicated that you would plead guilty at a committal hearing in June 2016, but delays occurred whilst waiting for reports, and for the next available circuit, complicated by a change of solicitors.

11In March 2017, you indicated a change of plea.  However the matter resolved again in May 2018, and was adjourned for an ARBIAS report to be obtained.  A need for that report was prompted by the possibility of a head injury arising from a serious car accident in 2005, resulting in your conviction for culpable driving in 2006.  That is the only serious matter in your history.  Indeed, you have no prior convictions for violence, only for shop theft and some other relatively minor matters.

12All your offending has been connected with abuse of alcohol and drugs.  You are an Aboriginal man of the Wiradjuri people, now aged 36, and you were 34 at the time of the offence.  You were born in New South Wales to an Aboriginal mother.  Your father, who was not Aboriginal, left when you were aged three, and your mother took you and your three older half-siblings from Brisbane to Sydney.

13She struggled with alcoholism, and you were placed in State care between the ages of about five and eight.  Your mother commenced a new relationship when you were 11, and the family moved to a town in New South Wales, a move which disrupted your primary schooling, to be followed by another move not long afterwards, causing further disruption. 

14As a child, you unfortunately endured physical and sexual abuse from your stepfather and half-brother, causing you to run away from home aged 16.  You began drinking alcohol and using illicit drugs very early as a means of self-medication, drinking large amounts of cask wine daily from the age of 14, and smoking cannabis from the age of eight, becoming a regular user by 13 or 14.  At age 16, you began using speed, transferring to ice at 20.

15In Melbourne, you lived on the streets for about eight months, then you were assisted by Koori Housing.  You began a relationship with a woman at the age of 18, and tragically the child born of that relationship died aged four months, causing strain on the relationship, leading to your separation.

16You went to Bendigo to live with your mother, and you obtained work, but in 2005 the car accident occurred.  You were driving with a blood alcohol reading of .112 per cent.  You suffered a significant head injury.  You were convicted of culpable driving and sentenced to six and a half years' imprisonment with a
non-parole period of four years.

17Whilst in custody, you were diagnosed with bipolar effective disorder and schizophrenia, although I note that the former diagnosis has been doubted by Mr David Ball in his recent report.

18You have not worked since that time.  You breached parole by shoplifting, and were returned to custody to serve the full sentence.  You were released in 2014, and managed to obtain housing in Cann River, and by May 2015, you were starting to engage in local services.  In this, you were encouraged by a social worker after you had presented to the community health centre in a very bad way, non-compliant with medication and trying to stop drinking, but you were reluctant to see a psychiatrist and you disengaged from the health service.

19This suggests that you had some insight into the need for help, but you were unable to accept it at that time.  Unfortunately a few months later, following the relationship breakdown with Ms Edgington, you committed the offence against Mr Callender and have been in custody since, as I said before, except for a short period on bail. 

20Your counsel has calculated that you have spent about 70 per cent of the last decade in prison.  Mr Ball has identified possible institutionalisation, as you find yourself at ease in prison and have difficulties living outside of it.  Accordingly, prison has proved to be no deterrent for you.  You have used your time in custody well, completing many certificates in a variety of skills, and importantly becoming qualified in computer skills, which might enable you to start a business.

21You have also developed superior skills as an artist, producing traditional indigenous art, several copies of which you have brought to court, and you use your earnings from employment in prison to purchase paint supplies.  Your work is exhibited in the Torch program, whereby talented prisoners' work is for sale, with proceeds held in trust for the prisoner.

22Importantly, your abstention from drugs and alcohol in prison, together with appropriate medication, has improved your mental health.  Past and recent testing indicates a sound intelligence, impeded by the disadvantages of your past, caused by disrupted and inadequate education, as well as the head injury and long-term drug and alcohol abuse, particularly the latter combination.

23In his recent report, Mr Ball diagnosed antisocial personality features, long-term alcohol abuse, and probable acquired brain injury.  He thinks you need intensive and structured drug prevention treatment, as well as cognitive behavioural treatment to address the antisocial aspects of your personality.  He said you expressed remorse and regret for what you had done, wishing you had been able to prevent it. 

24The neuropsychologist Martin Jackson assessed you recently, and noted a deterioration in your cognitive function since the car accident, which he attributes to your long history of substance abuse.

25He deduced from the other reports that it is not clear exactly what your psychiatric and personality profile and diagnoses are.  He also stated that you have not had appropriate treatment for most things, apart from medication.  He considers that medication, abstinence from substances, and counselling for the distresses and losses of the past will help prevent neuropsychological deterioration.

26Mr Kennedy, you have now spent 665 days in presentence detention, just over 22 months.  You are entitled to a discount on your sentence for your early plea of guilty, which has avoided the need for anyone to have to give evidence, and the expense and inconvenience of a trial has been spared.

27Linked to your plea of guilt is your genuine remorse.  You have not tried to minimise your behaviour and the fact that you are ashamed of what you did.  Your prospects for rehabilitation are probably good.  Your struggle is one of trying to move past your disadvantaged childhood and the deprivation that caused.  You seem to have some insight into this, and that is a positive indicator for rehabilitation.

28For the charge of recklessly causing serious injury, I sentence you to imprisonment for one year, to be combined with a Community Correction Order.  You have spent 665 days in presentence detention, and I intend that you spend a further 60 days before being released to begin the Community Correction Order.

29The law that you have just heard discussed between me and counsel now permits me to sentence you in this way, in order to comply with the amendment to s.44 of the Sentencing Act, which permits a combination of prison and a Community Correction Order to a prison term of one year or less[1].

[1] Younger v R [2017] VSCA 199

30So the sentence I impose will therefore be expressed in terms of 725 days with 665 days declared as already served as presentence detention.

31For the two summary charges, I sentence you to an aggregate sentence of one month’s imprisonment to be served concurrently with the other sentence.

32If you had pleaded not guilty to these charges, I would have sentenced you to a term of imprisonment of three years and three months, with a non-parole period of two years and six months.

33Take a seat please, Mr Kennedy, I want to make sure that the technicalities of the sentence have been ‑ ‑ ‑

34MS MAHADY:  Yes Your Honour, I have just noticed that Your Honour did say "I sentence you to one year with a Correction Order", and I think what Your Honour needs to do is sentence Mr Kennedy to 725 days with a Correction order, is that what Your Honour intended?

35HER HONOUR:  Is that the way to do it?

36MS MAHADY:  Yes.

37HER HONOUR:  That is that way I - yes, all right.

38MS MAHADY:  And then Your Honour would declare 665 days presentence detention, and that would mean that he has a remaining 60 days to serve.

39HER HONOUR:  All right, if that is the way to do it, then that is that.

40MS MAHADY:  Is it Your Honour's intention for Mr Kennedy to spend another two months ‑ ‑ ‑

41HER HONOUR:  Exactly.

42MS MAHADY:  That is right.

43MR NEWTON:  Yes, I agree with the submission of my learned friend, and again, paragraph 64, the critical line is "s.44 expressly states that the length of a term of imprisonment that may be imposed in combination with the CCO is measured after presentence detention is deducted".

44HER HONOUR:  That is the two months.

45MR NEWTON:  So Your Honour, in my respectful submission, that becomes 725 days, plus a CCO of  two years' duration, and then under s.18, you declare 665 days reckoned as served.

46HER HONOUR:  In that case I will amend what I have just said to comply with that.  And I will also now explain to Mr Kennedy the details of the CCO. 

47Stand again please, Mr Kennedy, and I will read this to you.  The Community Correction Order will start as soon as you are released, and you will have two days after your release to report to the Corrections office at Bairnsdale, 48 hours, so by 4 pm on the end of two working days after your release, you have to go to the Corrections office in Bairnsdale at 108A MacLeod Street.

48You will be under supervision for that time.  You will have to perform 100 hours of unpaid community work over 12 months, so I have given you plenty of time to do it, taking into account what might be transport difficulties at some stage.

49You are also to have assessment and any necessary treatment for drug abuse and alcohol abuse, to undergo any necessary assessment and treatment for any mental health condition, so that can be monitored.  And to further take part in any programs to reduce offending, as directed by the regional manager.

50The other day some time was spent discussing whether you might be eligible for the Wulgunggo Ngalu program.  It was explained to me by Mr Cowell that you would not be eligible for that, unless you had been able to cease using all substances, including methadone.  So the two-year CCO gives you the opportunity to do that, it is just something that may present itself as a possibility later on.  So it can be done within that two years, but of course that is for you and your case manager to talk about, and to make plans for, if that is what you want to do. 

Mr Newton, you can have a look at the CCO now if you approach the dock to have it signed.

51MR NEWTON:  As Your Honour pleases. 

52HER HONOUR:  Mr Kennedy, I have signed that too now.  One of the benefits of a Community Correction Order is that if there were to be a breach, hopefully there will not be, either by non-compliance or further offending, then eventually you would be brought back to be resentenced before me, rather than automatic imprisonment that follows from a breach of parole.

53OFFENDER:  Hopefully that doesn't happen.

54HER HONOUR:  Hopefully, that is right.  All right, thank you Mr Kennedy.

55OFFENDER:  Thank you Your Honour.

56HER HONOUR:  Thank you for your assistance, Mr Newton and Ms Mahady.

57MR NEWTON:  Most grateful, Your Honour.

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