Director of Public Prosecutions v Kennedy (a Pseudonym)

[2023] VCC 1225

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACOB KENNEDY (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	12 April 2023 and 11 July 2023
DATE OF SENTENCE:	14 July 2023
CASE MAY BE CITED AS:	DPP v Kennedy (A Pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1225

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:

Legislation Cited:  Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic)

Cases Cited:Guden v R (2010) 28 VR 288; Hague v R [2022] VSCA 17; McLean v The Queen [2018] VSCA 209; Worboyes v The Queen [2021] VSCA 169

Sentence:  Three years and eight months imprisonment; non parole period of three years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Reardon	Office of Public Prosecutions
For the Accused	Mr D. McGlone	Ajak & Associates

HIS HONOUR:

1Jacob Kennedy,[1] you have pleaded guilty to the following charges which carry the following maximum penalties:

[1] A Pseudonym.

Charge No.	Offence	Maximum Penalty	Additional
1	Aggravated Home Invasion contrary to s 77B of the Crimes Act 1958	25 years imprisonment (Level 2)	Category 1 offence Minimum NPP 3 years A gap of at least 6 months b/w NPP and sentence
2	Causing Injury Recklessly contrary to s 18 of the Crimes Act 1958	5 years imprisonment (Level 6)
3	Causing Injury Recklessly contrary to s 18 of the Crimes Act 1958	5 years imprisonment (Level 6)
4	Theft contrary to s 74 of the Crimes Act 1958	10 years imprisonment (Level 5)	Mandatory Drivers licence disqualification
5	Theft contrary to s 74 of the Crimes Act 1958	10 years imprisonment (Level 5)

2You have admitted your criminal history.  I shall return to your prior offending in the course of these remarks.

Circumstances of Offending

3The Crown tendered the summary of prosecution opening as Exhibit A.  A summary of your offending is as follows:

4On 30 December 2019 at 1:30 am, you along with seven other unidentified offenders attended a residential home in Harkness.  The house was occupied by three adults and a three-year-old child.  Mr Molloy and Ms Pike were in bed watching television whilst Ms Pikes’ father Mr Sturt and Mr Molloy’s son were asleep in other rooms.

5You were armed with a metal baseball bat and another offender was armed with a wooden garden stake.  Outside the house another offender grabbed the baseball bat from you, smashed the window in the laundry door and you all entered the house through the smashed laundry door.

6Ms Pike ran to the child’s room and barricaded herself inside with the toddler.

7The scene was somewhat confusing and chaotic.  Mr Sturt was momentarily locked out of the house but overpowered co-offenders and managed to make his way back in.  Both Mr Molloy and Mr Sturt then moved out to the front yard with you and the co-offenders.

8You and the co-offenders screamed at the men, demanding the keys to a Holden sedan parked in the driveway.  The occupants threw stones at you in an effort to protect themselves.  You swung the baseball bat around moving towards Mr Molloy and Mr Sturt.  Mr Sturt used his right arm to deflect the bat.  He struck his hand causing a comminuted fracture in his hand and a minor laceration to Mr Molloy’s left-hand.

9The group obtained the keys to Mr Sturt’s car.  Some of your group stole that car whilst others got away in a nearby waiting vehicle.

10Mr Sturt’s laptop computer was stolen from the house during the raid.

11You dropped your iPhone and the baseball bat when you left the property.

12You were arrested on 13 April 2020 but denied any involvement in the offending and you gave a false alibi.  You said you had passed your phone to an associate.

13On 26 February 2021 your DNA was analysed and found inside the stolen vehicle (which had been recovered) and inside the premises at Harkness.

14You were arrested on 19 November 2021 and again interviewed.  You denied any involvement in the offending but at the conclusion of the interview you asked to participate in a further record of interview.  You then made full admissions to the offending, you showed police a scar on your left forearm caused during the offending from which blood and the consequent DNA samples were obtained and you expressed comprehensive remorse for the effect of your offending on the house occupants.

15You were initially remanded in custody and spent 29 days in prison before you were released on bail.

16The matter was then resolved at a committal case conference on 24 May 2022.  Two plea hearing dates in November 2022 and April 2023 were vacated to enable proper psychological material to be gathered on your behalf.  Mr McGlone explained to me in the April hearing, the difficulties your lawyers had experienced in gathering appropriate psychological material.  Given the very serious consequences you face for this offending, including the very real prospect of being deported back to Sudan, I consider these delays were the result only of careful and conscientious efforts to ensure all avenues of obtaining mitigating material were explored.

Objective Gravity and Moral Culpability

17I turn now to a consideration of the objective gravity of your offending and an assessment of your moral culpability.

18The seriousness of the offence of aggravated home invasion can be measured by the maximum penalty imposed by Parliament – 25 years' imprisonment. Moreover, it is a Category 1 offence which, in practical terms means that a period of imprisonment is inevitable for this offence. Moreover, by the operation of ss10 and 11 Sentencing Act a mandatory non-parole period of not less than three years must be imposed unless special reasons exist.  Despite the full and conscientious effort made by your counsel to explore these matters, Mr McGlone responsibly conceded that none existed in your case.

19These objective factors already set out the seriousness of the offence to which you have pleaded guilty.  I turn now to an examination of the circumstances in which this offences were committed.

20The offences were committed in the dead of night by a total of eight of you.  Although the fact that you were in company is not an aggravating factor (because in fact it is an element of the offence of aggravated home invasion), the noise, the chaos and the sheer terror caused by the large volume of offenders makes this a serious example of this type of offending.

21You (that is the group) broke into the house by smashing a window and opening the door, two of you were armed and you entered into the one place where the extended family were entitled to feel utterly safe.  Your actions caused Ms Pike to barricade herself in her child’s room in order to protect him.

22You carried a weapon and you used it to cause injury to two of the occupants.

23You were on a CCO imposed on 4 September 2019 for offences of carjacking, reckless conduct, robbery, assault and resist an emergency worker at the time of committing this offence.

24I was told that none of the occupants have made victim impact statements, as even after a period of three and a half years, none of the three adults are psychologically or emotionally ready to revisit the terror of that night.

25The objective seriousness of the crimes is obviously high.  This is a serious example of these crimes.  In the usual case, this offending would carry condign punishment, to satisfy the sentencing objectives of deterrence, just punishment, and a measure of protection of the community.  However, there are a number of matters personal to you which must be carefully considered before the sentencing consideration can be completed.

Personal Circumstances

26You are 23 years old, being born in January 2000.

27Prior to your remand you were residing in Pakenham with your wife and
father-in-law and employed as a labourer.

28You were a refugee from Sudan, and you were born in Khartoum.  Your early years were gruelling and when you were around two years old your family fled to Egypt to escape the conflict and then relocated to Australia when you were aged six.  You reported to Doctor Rakov that you recalled life in Sudan as ‘chaos’ and you recalled one of your neighbours having their leg amputated.

29Your early life in Australia was marked with instability, attending three different primary schools due to moving houses and residing with cousins.

30You have seven siblings and your parents separated when you were a child; their relationship having deteriorated due to your father’s alcohol abuse.

31You were raised in the Melbourne area primarily by your mother who for the most part, was a single parent responsible for the care of eight children.  Your father relocated to Shepparton upon separation and only has intermittent contact with the family.  Your father did attend your wedding in April 2023 and now resides in New South Wales.

32Your counsel describes your family as ‘beset by a number of difficulties’.  You have four younger siblings in school and instruct that the older children are required to provide economic support to them, your youngest sibling has autistism spectrum disorder, your older sister works as a cleaner but suffers from psychological problems characterised by debilitating memory loss, your mother manages her medication and one of your younger siblings is in prison.

33You completed Year 12 and had an overall positive school experience.  However, you did experience considerable racism and bullying from your early teen years which you report left you angry.  You were an avid sportsman and soccer player and secured a place at Victoria University to study sports management.

34Upon turning 18, there was pressure on you from home to obtain paid employment and to assist in the raising of your younger siblings.  During this time you struggled with the pressures placed on you.  You were not able to obtain employment and you sought out other disaffected Sudanese friends in similar situations at home to yourself.

35This was the beginning of a downward spiral where you were introduced to and began binge drinking, drug use and in particular the regular abuse of Xanax.  This sparked regular issues with the police and saw you in custody on several occasions.

36You deferred your studies and you eventually dropped out.

37You met your now wife eight years ago and were close friends prior to commencing a relationship two years ago.  Her family has been a tremendous support to you and they have provided you with a sense of stability in your life since the offending.  You reported to Dr Rakov that your wife is a non-drinker, non-drug user and has made it clear to you that your past behaviours are not acceptable.

38Since your offending in 2019 until now, you have focused your energy on ensuring that you remain maintain drug free and working, and you have completed a rigging course.

39As I have said, your previous offending all dates back to 2019.  You had only one prior court appearance, at the Dandenong Magistrates' Court on 4 September 2019.  As I have already said, you pleaded guilty on that occasion to charges of carjacking, reckless conduct endangering serious injury, robbery, assault and resist emergency worker on duty, sexual assault, theft, theft of motor vehicle, commit indictable offence on bail, failed to stop at a police direction and other charges.  You served a period of 140 days' imprisonment before you were released on a CCO; which as I have stated, you are still undergoing and complying with at the time of this offending.

40Since the time of your offending on this charge and released on bail, your turnaround has been quite remarkable.  As I have noted, your relationship with your wife is stable, you have cut your old friendship ties, you only drink alcohol occasionally and moderately on those occasions, you do not take drugs, you have remained in regular employment and you enjoy the support and stability of your wife’s family.  It was telling that you were supported in court by your wife’s family and by a larger number of other family members outside the court.

41You are not an Australian citizen but have held a permanent resident visa status since 30 January 2007.  The critical factor here is that this offending and the prison sentence which must inevitably follow, puts you at significant risk of deportation to Sudan.  There are multiple issues arising from this - although you have at times felt alienated, Australia is effectively the only country you have ever really known.  You have only brief memories of Egypt and none or, I should say, eyelets of memory of Sudan.  You are only familiar with the language and culture of that country through your family here and not from having returned to and spending time in Sudan in recent years.  You told Dr Rakov that you have an uncle who is a general in the Sudanese army; if you return to Sudan; you would be coerced into the military.  By contrast, I think in answer to question from me, Mr McGlone said that you had no real family in Sudan.  In any event, I accept that a return to that country would be seismic and adverse for you.  Sudan is impoverished and wracked by civil war.  Mr McGlone stated that if you are assessed for deportation, you could be kept in indefinite immigration detention after completing a sentence until it is deemed safe for you to return to Sudan.

Psychological material

42I was provided with the psychological report of Dr Aaron Cunningham dated 11 April 2023.  He assessed you on 6 April 2023.  After testing, Dr Cunningham assessed that you present a low to moderate risk of further violent reoffending.  He considers however that if you relapsed into drug and alcohol abuse and antisocial associations, these would increase your risk of reoffending.

43Dr Cunningham considers that you are remorseful and that you understand the harm caused to the occupants of the house.  Nevertheless, Dr Cunningham considers that you indicate a “coexisting lack of comprehension or understanding of your situation” - that is arising from the example that you sought to undergo some testing with Dr Cunningham whilst you were travelling on a train to a shopping centre instead of attending at his rooms or completing the test in a quiet space.

44Dr Cunningham considers that your continued abstinence from drug and alcohol abuse, your abstinence from association with antisocial peers and maintaining your current relationship stability and employment are keys to your rehabilitation.  You did not present with significant treatment needs.

45After Mr McGlone expressed considerable (and might I say, justified) concerns at your situation before me in April 2023, the plea hearing was further adjourned to enable you to be assessed by Dr Jacqueline Rakov, psychiatrist.

46You appear to have told Dr Rakov things that indicate that your childhood and upbringing was perhaps even more violent, more antisocial and disturbed than I was told about in submissions by Mr McGlone; and I do not say that reflects on Mr McGlone at all.  Dr Rakov refers to your memories of violence in Sudan, the difficulties of your father’s almost immediate separation from the family on your arrival in Australia, the difficulties faced by your sister after her brain injury, that you self-harmed in 2014 and that it appears you stabbed your mother (I assume in 2015), of you having a brother in custody, another brother diagnosed with autism spectrum disorder, that you have suffered racist abuse and bullying and the difficulties endured by your sister.  You told Dr Rakov that by Year 11, you were angry, but you still managed to complete Year 12.

47You told Dr Rakov, (consistently with what Mr McGlone put before me), that your drugtaking provided an instant and easy escape from the responsibilities loaded on you by your family and your teen years.  It would appear from Dr Rakov’s report that you abused Xanax frequently and in a profound way.  You told her of buying 10 bottles of Xanax in the week before this offending and not sobering up until 10 January 2020.

48Dr Rakov reports that you were married earlier this year and that your life now appears stable.  Unsurprisingly, your thoughts on being deported are at best sketchy and she reports that you have no real plan.  You told Dr Rakov that you are planning to build a house and to get a job in the mining sector; but if you are deported, you and your wife “would have to work something out”.

49I make the simple observation that to my mind, this supports the same observation made by Dr Cunningham when he reported that you tried to undertake psychological testing whilst you were travelling on a train to a shopping centre.  You are still a very young man and I would consider you have a great deal more psychological and emotional growing to do.

50Although the focus of Dr Rakov's report was upon whether you had a defence of mental impairment available to you, Dr Rakov did not report you to be suffering from any current mental health issues which would influence the sentencing consideration.

Sentencing Submissions

51Mr McGlone, who appeared on your behalf, submitted that the following factors should operate to mitigate your sentence:

(a) Your early plea of guilty;

(b) Your plea was entered during the COVID-19 pandemic and the principles of Worboyes are brought into play;

(c) You are a youthful offender – you were 19 at the time of offending and are still a young man now;

(d) The extracurial punishment of the prospects of deportation to a foreign country and the possibility of indefinite immigration detention here makes the burden of imprisonment more onerous and you ruminate over the loss of opportunity to settle in Australia; and

(e) That your prospects of rehabilitation are enhanced by your good behaviour demonstrated since your offending, your subsequent compliance with your CCO and that you have pro social rapports in place and steady employment.

52Specifically, Mr McGlone submitted that there was no need to exceed the statutory minimum non-parole period provided by the legislation and in circumstances where you are well on the way to achieving your rehabilitation, that the head sentence should not exceed the minimum term except by a few months rather than by many months or by years.

53In the discussion, I referred to the case of McLean [2018] VSCA 209[2] (but not by name) as a case where I had imposed a high non-parole period in very different circumstances to this, but still where the prospect of deportation loomed.

[2]McLean v The Queen [2018] VSCA 209.

54Mr Riordan who appeared for the Crown submitted that the only appropriate sentence in this case is a term of imprisonment with a head sentence and a non-parole period.  Mr Riordan submitted that this flowed from the operation of the legislation and also from the circumstances in which this offence was committed.  I have already referred to those circumstances in my assessment of the gravity of your offending.

55Mr Riordan submitted that this type of offending is prevalent and must be met by principles of deterrence and just punishment.

56The Crown concedes the following matters are relevant as mitigatory considerations:

(a) Mr Riordan submitted that you have used your time well in the delay between the occurrence of the offending and plea date.  Your actions in this time supports your prospects for rehabilitation; and

(b) Mr Riordan submitted that you are still a relatively young man and your youth must be taken into account in the sentencing consideration.  However, Mr Riordan submitted, that these sentencing principles must be balanced against the objective seriousness of your offending.

57Mr Riordan observed that you are indeed very likely to face deportation, but the Crown did not make any particular submissions about that mitigating feature of that prospect.  Instead Mr Riordan referred to the principles in Guden[3] and Hague[4] - that is, I must not speculate on the prospect of your deportation.

[3]Guden v R (2010) 28 VR 288.

[4]Hague v R [2022] VSCA 17.

58Mr Riordan was not able to refer to any comparable cases, but instead submitted (so far as he was permitted) to observe that the operation of ss10 and 11 of the Sentencing Act and the unusual circumstances of this case would largely satisfy the sentencing objective.

Analysis

59It is obvious by what I said in relation to the objective seriousness of this offence that you must be sentenced to a term of imprisonment for this offending.  Moreover, you moral culpability is not reduced by the fact that you were severely drug affected on the night.

60There are however a number of factors which I must consider in determining the length of the sentence I impose upon you.

61First of all, I take full account of your plea of guilty and of your youth.

62Your plea of guilty must be given real weight.  I consider it has utilitarian benefit and when I look at the answers you made in your record of interview, I consider that you have developed insight into the wrongfulness of your actions and the fear caused to the occupants of the house.  I considered there to have been other expressions of remorse and that your remorse is genuine.  In this way I consider your plea of guilty facilitates the course of justice.

63You were 19 at the time of your offending and you are now only 23.  I consider this to still be a young age; particularly given the limited nature of your offending background.  There are three factors that I need to consider in relation to you being young in sentencing you.  The first is that because you are young, you are more likely to be making bad judgement calls in moving towards criminal offending.  And that stems from your immaturity.

64The second is, that the courts say the experience of the criminal law is that if the right sentencing disposition is put in place on those of a young age the chances are that you can go on and lead a good life, and rehabilitate yourself.  And by rehabilitation I mean, not commit further offences, not go back to alcohol abuse and not go back to drug use.

65And the third principle is that the sort of people that you are going to meet in prison and become friendly with are more likely to have a bad effect on you than a good effect.

66Now, having said that, though the promotion of your prospects for rehabilitation are of considerable importance in this case, they are not the only consideration.  The law recognises that the seriousness of an offender's crimes may mean that the promotion of rehabilitation must take a backseat even when the offender is young.

67In this case, however, you face a mandatory non-parole period of not less than three years.  As I have stated, it was not submitted that you could be excepted from the operation of that provision.  In my view, the operation of this provision by setting such a minimum non-parole period, does the work of putting your relative youth (especially at the time of your offending) in the backseat in the sentencing consideration.  That provision alone ensures that a sentence of an appropriately stern nature is imposed in this case.

68I take into account the prospect that you will be deported is relevant as it deprives you of the opportunity of settling permanently in Australia, which is the only country that you really know.  I further take into account that the prospect of future deportation is a form of extracurial punishment because your time in prison will be more burdensome than it is for others due to the anxiety caused by the prospect of future deportation to a country that you do not really know and separation from your loved ones here.

69I am aware of the limits of taking this into account and I refer specifically to the case of Hague [2022] VSCA 17, [28], [29]. In particular, it does not appear that you have been declared an unlawful noncitizen yet. I must not speculate on the likelihood of deportation or the likelihood that you will spend time in immigration detention at the end of your sentence if the situation in Sudan does not allow for your deportation.

70I have also made some allowance for your difficult childhood and upbringing.  It seems to me that that allowance should be made for the upheaval of your early life in Sudan, the fact that you were transitioned to Egypt and the difficulties you faced and endured for years upon and after your arrival in Australia including enduring racism, bullying and cultural differences.  It may be clear that Australia is the only country that you have ever really known, but it does not mean that it has been an easy fit.

71The evidence of the stability you have achieved in your life in the years since you were released on bail give me confidence that you can rehabilitate.  Further, you have no mental health, drug or alcohol issues to contend with at present.  It is unclear to me what the future holds for you and whether you will be deported or not, but if you are able to remain in Australia it is essential that you cling to the good things that you have started to build and put this episode of two or three years behind you.

72Accordingly, Mr Kennedy, I make the following orders:

73On the charge of aggravated home invasion, you are convicted and sentenced to 38 months' imprisonment and that is the base sentence.

74On Charge 2 of recklessly causing injury, you are convicted and sentenced to 12 months' imprisonment and I order that three months of that sentence be cumulated on the base and other sentences.

75On Charge 3 of causing injury recklessly, you are convicted and sentenced to nine months' imprisonment and I order that two months of that sentence be served cumulative on the base and other sentences.

76On Charge 4 of theft, which is the charge of theft of the vehicle, you are convicted and sentenced to three months' imprisonment of which one month is cumulative on the base and other sentences.

77On Charge 5 of theft, you are convicted and sentenced to one month.  That sentence will be served concurrently with other sentences.

78The total effective sentence is therefore one of three years and eight months.  I order that you serve a non-parole period of three years before you are eligible for parole.  I declare the period of 32 days, excluding today, pre-sentence detention reckoned as already served.

79The 6AAA declaration is but for the plea of guilty in this case, I would have imposed a sentence of six years with four years to serve.

80The licence disqualification that is mandatory on s4 is you are disqualified from driving and obtaining a licence for a period of two years.

81So the sentence is three years and eight months with three years to serve.  The PSD comes off.  Mr Riordan, is there anything that I have missed?  There are forfeiture and disposal orders, is that correct?

82MR RIORDAN:  That's correct.  Yes.

83HIS HONOUR:  Thank you.  Mr Ajak, do you have anything to say about the forfeiture and disposal orders?

84MR AJAK:  Not opposed, Your Honour.

85HIS HONOUR:  All right.  Thank you.  I will make those orders in chambers.

86If there is nothing else from your perspective, Mr Ajak, do you want to stay on the line so you can speak to Mr Kennedy over the video link or will you make other arrangements?

87MR AJAK:  Yes, I would be grateful if I could speak to him on the link just for a couple of minutes.

88HIS HONOUR:  No worries.  Thank you.  Thank you for the assistance of both parties and, Mr Ajak, if you can pass my thanks onto Mr McGlone.

89I will adjourn, I will take everyone out with me and leave you on the link with Mr Kennedy.

90MR RIORDAN:  As the court pleases.

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