Director of Public Prosecutions v Kennedy-Hunt

[2016] VCC 149

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-10752

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAK KENNEDY-HUNT

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 February 2016
CASE MAY BE CITED AS:	DPP v Kennedy-Hunt
MEDIUM NEUTRAL CITATION:	[2016] VCC 149

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 M. Fisher
For the Offender	Mr H. Rattray

HER HONOUR: 

1Jak Kennedy-Hunt, you have pleaded guilty before me to one charge of recklessly causing serious injury and one charge of affray.  The facts underlying your offending are as follows:

2On the evening of Sunday 8 March 2015, the victim, Edward Scanlon, was out with a group of friends in the St Kilda area celebrating a friend's birthday, when at about 10.55, at the intersection of Fitzroy and Grey Streets, he and his friend, Trent Pastura, saw you and your friend, Tyson Fowkes, yelling and getting out of your car to approach an unknown male waiting to cross the road at the pedestrian lights.  I was later told during the plea this had something to do with a bottle being thrown at your car, but nothing further.

3The two of them then stepped in to assist this unknown male, at which point you and Mr Fowkes turned your attention on them and eventually several of
Mr Scanlon's friends, including female friends, approached to defuse the situation.  You tried to punch Mr Pastura, missed, with the punch connecting to the side of a female who was part of the group of friends of Mr Scanlon, but caused no visible injury.

4There was a verbal exchange and the two you momentarily went back to your car and then returned to the group where a physical and verbal altercation ensued, which was ended when women in the group stepped in to break it up.  The two of you then went back to your car, driving away and turning left into Grey Street.

5Mr Scanlon and his friends continued crossing Grey Street, heading towards another venue known as Cushion, which was down Fitzroy Street.  As
Mr Scanlon and his friends crossed the road, the two of you stopped the car a short distance from the intersection and walked back looking for that group, all of which was captured on CCTV footage.

6An unknown person then indicated to you and Mr Fowkes where Mr Scanlon and his friends had gone.  Mr Fowkes then approached Mr Scanlon from behind and punched him to the side of the head, causing him to immediately lose consciousness and fall face first into a metal fire hydrant in front of him before falling further down onto a concrete footpath.  Fowkes then went on to punch another friend of Mr Scanlon's, that is Benjamin Nichol to the side of his face and then another friend of Mr Scanlon's, Joel McKee who went to assist
Mr Nichol.  Nichol and McKee received minor injuries that did not require hospitalisation.

7You, at this stage, became involved in a heated exchange with bystanders, pushing, shoving and punching, Mr Pastura to the head Mr Pastura. 
Mr Pastura did not suffer any visible injuries or require medical treatment.  The two of you then ran off back towards your car, before driving into the basement carpark of the Adina Apartment Hotel on Little Grey Street in
St Kilda where the two of you were staying. 

8Mr Scanlon was helped by his friends and treated at the scene by ambulance officers before being admitted to the Alfred Hospital.  He was admitted in a serious but stable condition and ultimately found to have sustained fractures, that is breaks to both sides of his jaw, which required surgical treatment.  Ultimately plates were inserted on both sides of his face.  He had lacerations to the left eyebrow and bridge of his nose which required nine stitches.

9Using CCTV footage and with the assistance of witnesses, police were able to track the two of you down.  You and Mr Fowkes made "no comment" records of interview.

10Mr Fowkes ultimately entered a plea of guilty at a very early stage, that is at committal mention. 

11Your plea was entered at a later stage, essentially on the basis that because you played such a different role to Mr Fowkes in terms of the assault upon
Mr Scanlon that you should not plead to that charge even on the basis of extended common purpose.  I understand that advice, but do note that ultimately you did decide to enter a plea of guilty.  I do acknowledge that plea of guilty as being made in the face of a viable defence.  How it would have succeeded in front of a jury is another thing entirely, but I do accept you had a viable defence but have chosen instead to take responsibility for your actions in relation to Mr Fowkes on an extended common purpose basis.

12Mr Scanlon and another member of the group made victim impact statements.  Your actions in being part of, if you like, the attack upon Mr Scanlon, that is in accompanying Mr Fowkes in going after the group of people of which
Mr Scanlon was one, underlies the first charge against you on indictment, that is the charge of recklessly causing serious injury, and the charge of affray relates to both you and Mr Fowkes fighting with the group, that is to the terror of the public.

13Mr Scanlon, in his victim impact statement made it clear that he has suffered a lengthy and traumatic aftermath to the attack.  His jaw was broken on both sides.  As I have said titanium plates were surgically inserted to both sides of his jaw and must remain there for the rest of his life.  He has a scar over his left eye due to the laceration which was stitched and his nose is crooked.  He was unable to eat for some weeks after the injury, causing significant weight loss.  He required daily pain medication for months simply in order to cope.  He suffered dizzy spells, ongoing poor concentration and memory lapses, debilitating fatigue and sleep difficulties.

14Mr Scanlon wrote that he is now more reserved, fearful of being attacked again, still has daily pain in his jaw and still has nightmares.  He concluded:  "The attack has changed my life dramatically in how I see the world and how I relate to people and I am still learning to live with it."

15The other victim impact statements from your women who were friends of
Mr Scanlon who witnessed the fight and attack upon him, described their horror of seeing their friend so terribly injured, their terror during the affray and the ongoing disturbance and fear they have experienced since.

16I have deliberately described the offending underlying the charges you face and the victim impact statement in identical terms to sentencing remarks I delivered to Mr Fowkes.  It seems to me in the circumstances it is entirely appropriate that they be identical.

17I now turn to your personal circumstances.  You are 27 years of age, one of twin boys born to your parents, who separated when you were very young.  You were raised in Torquay.  At about age 11 you were confronted with the information that (1)  The man you thought of as your father was in fact your stepfather; (2)  He and your mother were separating; and (3)  Your mother was now living with a man you had known as Uncle John who was in fact your biological father.  This turbulent situation was worsened by the fact that your father was a much more severe disciplinarian than your stepfather had been and it appears problems have been ongoing between the two of you ever since.

18You are an extremely talented footballer and eventually developed a sole aim throughout your secondary schooling, (you did complete Year 12 at
St Joseph's College in Geelong), of carving out a career in the AFL.  While it appears you had the capacity to do this, you were bedevilled by injury and were not, contrary to expectations, picked up in the draft.

19You thereafter pursued your dream via playing for various VFL clubs, one of these being Werribee, where at age 18 you formed association with older players who were entrenched in a culture of drinking, to which you succumbed, lost focus and broke an ankle.  Your bad luck followed you to the Geelong VFL where you again broke your ankle in the first game. 

20Finally you moved to South Australia to take up a position in the South Australian Football League with the Norwood Football Club.  This was seen by you as a real opportunity to make it to the AFL.  However, you struggled living away from home, felt isolated and lonely, suffered further injury and began associating with those in the club who used drugs, in particular cocaine and amphetamines.  You stayed in South Australia for two years but suffered further problems with your ankle and returned to Victoria, dispirited and drug dependent on cannabis and cocaine, also sporting a criminal record for trafficking and cultivating cannabis which was found by police at a house where you were living.

21In 2006, you had been dealt with in the Children's Court for recklessly causing injury in relation to a fight, in which both you and your opponent were charged, and I do not regard that very old matter as being particularly relevant to the sentencing exercise before me.

22You initially lived with your parents, but the relationship broke down as a result of your drug use, which then extended to methamphetamine, to which it seems you quickly became addicted.  You then moved in with your brother after the relationship with your parents broke down.  You underwent, as a result of your methylamphetamine or ice use, the usual personality changes common to such users, sleeping all day, irritability, bad temper, chaotic living and eventually intervention orders were taken out by both your parents and your brother, with whom you lived until Christmas 2011.

23You then really hit rock bottom, became homeless and started living in your car, using a large number of drugs and eventually becoming involved in trafficking ice to support your habit. Your decline in Victoria was marked by petty offending.

24In 2011, you were dealt with twice by the Magistrates' Court in the Geelong area for charges, including breach of intervention order, possession of speed, possession of cannabis, unlawful assault, possession of a controlled weapon, the majority of those offences arising from a confrontation between you and your brother when you attempted to move back in from the car to your brother's house and he resisted.  As I have said, you then went on to become involved in trafficking ice.

25On 22 August 2012, police intercepted a car in which you were travelling with three other men, there discovering a folding knife, a knife, gun and ammunition and 82.4 grams of methamphetamine.  You were arrested but escaped while being loaded into the divisional van and the next day you were arrested after police received a call from your brother.  As it turned out, as you were seen behaving erratically at the Castlemaine train station.  On arrest, police found you had a semi-automatic pistol shoved down the front of your pants.

26You were remanded in custody from that date – August 23, 2012 and eventually on 19 September 2013, Her Honour Judge Campton sentenced you to a term of four years and three months' imprisonment with a minimum term of two years and six months on charges of trafficking methylamphetamine, being a prohibited person in possession of a firearm, possession of a controlled weapon, possession of ammunition and escape from custody.

27You were released on parole in relation to this sentence on 3 December 2014, only a matter of months before you became involved in the offending which has brought you before the court on this occasion.

28Your twin brother, Bart, a crane operator, who runs his own business, gave evidence on the plea of your decline into drug use, homelessness, your fall out with your family and eventual service of a prison term.  He spoke of the damage that in his view your professional football life had wreaked upon you - the big money you earned without any particular work ethic being developed along the way, the constant pressure and disappointment, as I have said your fall into drug use and the breakdown of your relationship with your family and your eventual decline into a homeless drug addict in 2012.

29You apparently detoxified whilst you were in gaol.  Your brother did say at first you seemed a little bit too comfortable there when you were first in prison, but in time became dissatisfied with your surroundings, put your head down, undertook a number of courses and got yourself off drugs.

30On release your brother took you to live with him and he initially employed you in his company as a scaffolder or dog man and you went about obtaining a large number of tickets required by you to work in that industry.  However, it was found that the demands of the intensive parole period you were then on made this employment impossible and you then took up work as a concreter.

31In your time on parole you were attending to provide urine samples three times a week and you never once turned in a positive sample.  You underwent weekly psychological sessions.  I received a reference from your employer,
Mr Tom Yeale of Teasdale's Constructions praising you for your hard work which comprised employment of up to six days a week, your commitment and ability.  You also formed a relationship with a cousin of one of your best friends, who continues to support you and attended court on the plea for this matter.  She is a person with no prior criminal history who is studying health studies.

32Your brother attested to the great efforts that you put into your rehabilitation, both in the latter stages of your first gaol sentence and on your release.  Whilst in custody you were also told that your father had developed motor neurone disease, which has to this stage reached a point where it affects all his movements from the waist up as well as his speech and meant he has been unable to operate his transport company.  His illness is terminal and it is uncertain what his life expectancy is, and this has apparently greatly affected you.

33According to psychologist, Dr Aaron Cunningham, whose report was tendered on the plea, you have apparently always had a tumultuous relationship with your father and have always unsuccessfully in his view sought his love and affection and approval.  Your father has apparently had great difficulty in coping with his illness and unfortunately sought to deal with it at one stage by lashing out at you in blame and anger.

34I am satisfied that you progressed very considerably whilst on parole and, indeed, were in the process of entirely turning your life around before becoming involved in this incident.  It occurred, I was informed by your brother, in the evidence he gave on the plea, on the only weekend since your release from gaol when you were in fact not with him as he had gone interstate for a few days.

35As I said, it is unclear just what caused you and your co-accused to act as you did.  Neither of you had apparently had much to drink.  As I have said, there was an incident beginning when a bottle was thrown at Fowkes’ car and matters unfortunately went from there.  It is incredibly unfortunate that you did not have the sense to understand your vulnerable situation and make the decision to walk away. 

36I do accept that your role in the proceedings was completely different to that of Mr Fowkes, but I do understand also that you did abet him, that there is a common purpose basis to the charge to which you have ultimately pleaded guilty, that is you went with him in his pursuit of these people who had walked away.  It was incredibly unfortunate and foolish of you to take those actions, particularly given the progress that you had made and the intensive efforts you had put in, as I have said, to turn your life around.  You have always said, it appears, when being interviewed by Dr Cunningham, that you come from a very good family, and I am satisfied that you do, a very law abiding family and that it is a matter of shame to you that you are the only person in your family to have gone as far down the criminal path as indeed you have.

37Your position is particularly unfortunate because you having offended on parole, a court must sentence you to a term of imprisonment which is cumulative upon that which is owed to the parole board unless there are exceptional circumstances.  You have essentially been in custody since August 23 2012, except for that period of several months when you were released on parole.

38I accept that this latter time in gaol has been extremely difficult for you, particularly in light of your father's increasingly debilitated state.  It is a very real possibility and an entirely realistic fear by you that he might die whilst you are in gaol.  Nevertheless you have continued to progress with your rehabilitation in gaol, undertaking a number of course to qualify for employment with your brother once you are released. 

39Your brother also spoke of how differently you now experience gaol, contrasting your attitude to when you were first incarcerated, and I do accept that your attitude to gaol has changed entirely, that it is now a place you have no desire to remain in, and I do accept that you are determined upon a fully rehabilitated life.

40It is Dr Cunningham's opinion that you developed a depression following the demise of your football aspirations and in that context became vulnerable to pressure from drug peers that were at the football club in South Australia.  He believes that as a result of your current incarceration and your father's illness, that occurring at one and the same time essentially, you now present with a diagnosis of adjustment disorder with mixed anxiety and depressed mood. 

41He stated:  "In my opinion if left untreated, a term of imprisonment would weigh more heavily on Mr Kennedy-Hunt compared to an individual without adjustment disorder.  It is my view Mr Kennedy-Hunt would be at real risk of suicide if incarcerated when his father died.  He presents as suffering psychologically during his current imprisonment.  His father's illness and his inability to support his family have resulted in significant grief and distress."

42He noted, and I accept, that you have significant protective factors at play in your life, being the support of your crime-free and stable family, your girlfriend, your very solid employment prospects and the very positive rehabilitation you have undertaken since being gaoled in 2012.

43Defence counsel submitted that I should find there are exceptional circumstances in your case, such that I should not impose a cumulative sentence upon you.  Prosecuting counsel disputed this, further submitting that I should sentence you only by way of a term of imprisonment to be immediately served, opposing the imposition of a mixed sentence, that is a sentence comprising a term of imprisonment and a community corrections order.

44Despite the strong mitigating and indeed sympathy arousing factors in your case, I am not prepared to find, nor do I feel that I can find that those exceptional circumstances do exist.  However, I am satisfied that you have made great progress since 2012.  You have freed yourself from your drug addiction and you have taken every educational opportunity open to you, demonstrating a capacity also to be employed and to work hard.  You have regained the support and love of your family and I accept the psychological anguish attached to your father's condition that you suffer whilst in gaol and accept that the appropriate Verdins principles have application in your case, that is the principles that relate to a prisoner suffering more greatly as a result of imprisonment than other prisoners.

45I am prepared to find that you do have very good prospects of rehabilitation and that specific deterrence is not a principle requiring overdue weight in the sentencing exercise before me.  However, at the end of the day, despite all your progress, you did take the decision with Mr Fowkes to pursue an argument with violence of the kind that as I said during the plea is resulting generally far too often in great damage and physical harm amongst young men on the street, as per the extremely grave injuries suffered by Mr Scanlon.  You have to understand, they are a lifelong injuries for him.

46You may not have struck the blow, Mr Fowkes did.  You may have squarely confronted your opponent as opposed to the way Mr Fowkes went about inflicting the injury that he did upon Mr Scanlon, but you did take the very rash decision to engage in street violence which has such potential and does result in such widespread harm that I cannot find, no matter how unfortunate and pitiable your circumstances, your circumstances amount to ones that are exceptional. 

47However, as I have said in my view, those same mitigatory factors that I have outlined lead me to the view that whilst a sentence of imprisonment must be imposed and imposed cumulatively, it should be relatively brief and I intend to combine this with a community corrections order.  You are a relatively young man who has managed to turn his life around, as I have said.  Lengthy incarceration of the kind urged upon me by the prosecution could not only interfere with all that progress but really result in its undoing which will never be of benefit to the community.

48I must sentence you on the basis that you will serve out the rest of the period that you owe to the parole board, which I am informed means you are in custody until March 2017.  This would mean you have been in gaol for a period of four years and three months.  It is also clear, however, that in sentencing you I must have regard to the totality of the sentence I will impose, taking into account the offending you have involved yourself in. 

49Your actions on this night were hasty, ill-considered and rash and resulted in great harm to Mr Scanlon, although indirectly on your part.  You are however very much paying the price and if that price is too high, on the psychological material before me, it is not just you but the community who will suffer.

50It was urged upon me that I should sentence you more heavily than Mr Fowkes as he had no prior convictions, entered an early plea and gave positive demonstration of strong remorse. Ultimately I gaoled him essentially because of the way he went about doing what he did, that is that he essentially "king hit" Mr Scanlon and did it pretty much from behind. 

51You might be here on an aiding and abetting basis, but it seems to me that I am still entitled to distinguish between what you did and what he did.  It seems to me overall when I do distinguish your roles, when I look at what progress you have made over the years and when I look at the principles of totality, that despite the differences between each of you in other respects, I should in my view impose the same sentence upon you that I did him. 

52This will be an aggregate sentence on both charges as, in my view, they both arose from the same events. 

53In relation to each of those charges, I am going to sentence you to a term of three months' imprisonment, which is to be served cumulatively upon the sentence you are presently undergoing.  You will then be released on a community-based order.

54I had regard to the fact that I imposed a particularly onerous community corrections order upon Mr Fowkes.  Again, given your position, that is when you are released from gaol and regarding the principles of totality, it seems to me that it is perhaps not appropriate that you have entirely the same community corrections order conditions as he.  I should add that you have been found suitable for placement on a community corrections order.

55Before I can place you on a community corrections order I have to advise you of the conditions, because I can only place you on such an order with your permission.  Again, I make the comment that I did when I was sentencing
Mr Fowkes, which is, this criminal disposition is not designed to reflect necessarily the seriousness of the injuries that Mr Scanlon suffered.  I had quite some conversation with Mr Scanlon during Mr Fowkes’ plea about what the purpose of a sentence is and why it is imposed, but I seek to make that comment now in the sentencing remarks as they may well be sought by
Mr Scanlon and it is appropriate that some mention is made to it.

56There are core conditions to a community corrections order and they are these:

57Once you are released you must report to the appropriate Community Corrections office within two working days of your release.  Whilst you are on the order you must not commit any other offence punishable by imprisonment.  That does not mean you have to be imprisoned on another offence, it means you have to have committed an offence for which theoretically you could be sentenced, so something as small as a theft from a supermarket would comprise a breach.  If you breach the order you will be brought back in front of me and I will re-sentence you on this.

58While you are on the order you may not leave Victoria without the permission of the community corrections order.  Whilst you are on the order you must not attend on the Community Corrections office whilst affected by drugs. 

59One of the notable recommendations of the Community Correction's reports that I received, was that essentially you have now been drug-free for almost five years, perhaps more like four years really, so it is not considered that a drug treatment condition is necessary in your case.  However, I am going to order that you attend for assessment and treatment for mental health difficulties.  That is for two reasons. 

60It seems to me that I must accept the diagnosis of Dr Cunningham as to the depressive condition that you have ultimately developed.  I understand that you still harbour aspirations with your AFL career and if that still does not go right for you, I am concerned that you may not psychologically handle that all that well and you actually need some assistance with that, but also you have spent a long time in gaol in some mental difficulty, particularly in relation to the fact of your father's illness and you spent a long time on drugs.  You ended up living like a classic junkie and always leaves a mental residue.  I want to make sure that all those aspects of your life are attended to.

61That condition of seeking psychological treatment for a young man can actually be seen by some young men as more difficult than anything else.  Most young blokes do not like attending upon therapists and talking about their innermost feelings, which you will be required to do.  I am saying very clearly to you that you must attend to that particular condition and if you do not attend to it and if you do not turn up to those sessions then you will be breached and brought back in front of me.  Do I make that clear?

62OFFENDER:  Yes, Your Honour.

63HER HONOUR:  The order is going to last for a period of two years and six months and I am going to order that you undertake 350 hours of unpaid community work whilst you are on the order.  All right?  Are you prepared to enter into that order.

64OFFENDER:  Yes, Your Honour.

65HER HONOUR:  Thank you.  We will just prepare the paperwork for you.  Thank you.

66I do not know quite how that is going to work because I do not know what the view of the parole board will be, but I will make sure that my sentencing remarks are forwarded to the parole board.  I think they are important because of the findings I have made about the determination shown by
Mr Kennedy-Hunt whilst he has been in gaol over the years and his prospects of rehabilitation and the protective family factors that he has in terms of his own family. 

67What I mean by that is that I know that when you are released you are going to go out to a lot of family support, good solid family support.  That is called a protective factor.  That means it is considered that you are less likely to reoffend because you have got good family, you have got the support of a relationship, you have got positive prospects of rehabilitation, so your chances of re-offending are considered to be less.  That is, in my view, an important factor and one that I have taken into account.

68It may be that the parole board may take into account my sentencing remarks and the findings that I have made about your rehabilitative progress.

69You are not going to enjoy it much.  It is going to be long and you are going to have a lot to do, all right, and it is on top.  I am going to say to you what I said to Mr Fowkes. 

70I do not enjoy particularly sentencing someone like you.  I can see that you have made a huge effort in your life, but at the end of the day when I was thinking about this and thinking what I should do, what does come through is you have not quite got there.  The fact that you were stupid enough to do what you did when you were on parole after all you had done means you have not quite got it, in my view.  Hopefully this time when you are released you will.

71I hope you do not go back to gaol feeling like the world is against you and that it is not your fault.  At the end of the day it is your fault because you did go with Mr Fowkes after that group of people.  You did do it.  It was really, really stupid and it is really, really sad because you were doing so well.  What has happened to you is because of your decision-making process at the time. 

72Three-quarters of blokes coming out of a period of offending is them understanding that they are responsible for it.  Not that that makes you a horrible person or anything, Mr Kennedy-Hunt, not that that makes you someone who should not be proud of what he has done, but you did make a mistake, a really foolish mistake.  I do not want you to lash yourself about it, but I want you to understand that you did that, because you have got to bear that in mind when you are released next time, that if you want to stay out, it is up to you.  That you are probably going to have to make decisions that you would not like to make normally.  That you are probably a fairly feisty young man and you might have a bit of a hot temper and you have got to keep that really under control, no matter how justified physical action might seem to you at the time.  Am I making sense to you?

73OFFENDER:  Yes, Your Honour.

74HER HONOUR:  Because I know you are having a pretty hard time in gaol as it is, I am fully aware of that, but you have to take into the mix that you have to change your head about the way you are going about your life.  All right?

75OFFENDER:  Yes, Your Honour.

76HER HONOUR:  Thank you very much.  Have a seat.

77OFFENDER:  Thank you.

78HER HONOUR:  We will get the paperwork together.  When I do a combined gaol and CCO do I still have to make a s.6AAA declaration?  I know I do not if it is a straight CCO.

79MR FISHER:  I think you do because if part of it, yes - well, for what it is worth I think you do because part of it is gaol.

80HER HONOUR:  Yes, I think you are right.  All right, just to be on the safe side.  Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of, and this is taking into account the totality principle, so I make it very clear that because the sentence I am speaking of would be less than that in relation to Mr Fowkes, part of that is due to totality and part of it due to the role, and because it would have been cumulative, I would have sentenced you to a term of imprisonment of about two years and nine months and order you serve a minimum term of about
18 months.

81I am making this very clear, Mr Fisher, had there not been the fact that there is cumulation because he was on parole at the time, the sentence would have been the same as that imposed on Mr Fowkes.  I make it very clear there are entirely different factors at play.

82MR FISHER:  Yes, I understand that, yes.

83HER HONOUR:  All right, very well.  Good luck, Mr Kennedy-Hunt.

84OFFENDER:  Thank you.

85HER HONOUR:  You have done really well.  Hang on to that, you know, you have shown a lot of guts and it is really hard coming back from where you have come back from.  It is really hard to have to come back and have this dealt with as well, but you have done it, it is done and I think you will do really well, for what it is worth, all right.

86OFFENDER:  Thank you.