Director of Public Prosecutions v Kennedy-Hunt
[2013] VCC 1306
•19 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL DIVISION
CR-13-01062
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAK KENNEDY-HUNT |
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JUDGE: | Her Honour Judge Campton | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 5 September 2013 | |
DATE OF SENTENCE: | 19 September 2013 | |
CASE MAY BE CITED AS: | DPP v Kennedy-Hunt | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1306 | |
REASONS FOR SENTENCE
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Subject: Trafficking in a drug of dependence (methylamphetamine) – possess firearm.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: Four years and three months imprisonment – Non-parole period of two years and three months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Jones | Office of Public Prosecutions |
| For the Accused | Ms D Caruso | Robert Stary Lawyers |
HER HONOUR:
The Offences
1 Jak Kennedy-Hunt you have pleaded guilty to one charge of trafficking in a drug of dependence, being methylamphetamine, more commonly known as ice, and one charge of possessing a firearm while being a prohibited person. The maximal penalty for trafficking is 15 years imprisonment and for being a prohibited person possessing a firearm it is ten years imprisonment.
2 You have also pleaded guilty to three summary offences, these are possessing a controlled weapon without lawful excuse, a flick knife; possessing cartridge ammunition; and escaping from lawful custody. The maximum penalty in relation to possessing a controlled weapon is 120 penalty units or one years imprisonment. The maximum penalty for possession of cartridge ammunition is 40 penalty units. The maximum penalty for escaping from lawful custody is two years imprisonment.
Circumstances surrounding the offending
3 The circumstances surrounding your offending are that on 22 August 2012 you and three other men were in a vehicle when it was intercepted by the police in Castlemaine. The police conducted a search and you were found to have a folding knife with a seven centimetre blade, and that relates to the summary charge of possess a controlled weapon; and one round of nine millimetre ammunition, which relates to the summary charge of possessing cartridge ammunition.
4 A search of the car revealed three zip lock bags in the footwell. They contained a substance which was later analysed and found to be methylamphetamine. The police also found handwritten notes known as tick books, which while they could not be said to be in your hand writing were obviously an accoutrement to trafficking.
5 The trafficable quantity of methylamphetamine is three grams. The analysis found that 82.4 grams of methylamphetamine was present and that was it was 80 per cent pure. In relation to the sale of the drugs, if sold in grams the price would range between $82,400 or $57, 680. If sold in ounces the price would range from $29,400 up to $38,200.
6 You and the other three men in the car were placed under arrest. The charge of escape from lawful custody relates to the fact that when you were being placed in the divisional van you escaped. You were found the next day when the police received a call about a man behaving erratically at the Castlemaine railway station. You were arrested and searched at the police station and you were found to have a semi automatic pistol down the front of your pants, the possession of which relates to Charge 2 on the indictment.
7 While you made a no comment record of interview on 14 December 2012, you made a statutory declaration admitting responsibility for the drugs found in the footwell of the car.
Personal circumstances
8 Moving on to your personal circumstances, your counsel provided the court with details and further information was contained in a report from Carla Lechter, dated 2 September 2013. You were born on 12 November 1988 and you and your twin brother Bart grew up in Torquay. When you were ten or 11 you found out that the man you thought was your father, Clyde Batty, was not in fact your biological father. Your mother separated from Clyde and your biological father, previously known as Uncle John, moved in to the house. Apparently he was a strict disciplinarian and you had trouble adjusting to his style of parenting.
9
You threw yourself into sports and it is apparent from your references that you excelled at sport, particularly at football. In his reference, the principal of
St Joseph's College in Geelong described you as having an outgoing personality and a significant commitment to achieving successful outcomes in the sporting arena. Jonathon Halt, a teacher and football coach at school, described you as being a very talented footballer and as a student who had the potential to achieve many things.
10 After leaving school you trained with the Richmond Reserves, aged 18, but apparently went off that list after suffering a number of injuries. You had two years with the Geelong VFL and then moved to Adelaide to take up a position with the South Australian Norwood Football League.
11 However, it was while you were in South Australia that things appeared to go off the rails. You suffered and injury and broke up with your girlfriend, you started making the wrong decisions, mixing with the wrong people, taking drugs, and partying.
12 On 20 June 2011 you were sentenced at the Adelaide District Court to a term of imprisonment for a period of two years and four months for charges of trafficking in a proscribed drug, cultivating more than a prescribed number of cannabis plants, and possessing proscribed equipment. The sentence was suspended upon you entering into a bond to be of good behaviour for two years.
13 You came back down to Melbourne and it is apparent from your subsequent court appearances at the Geelong Magistrates' Court that you were still out of control and using drugs. These prior offences include possess a controlled weapon without excuse, assault, contravene a family intervention order, and possess amphetamine.
14 With respect to your current charge you have been in custody for a considerable time, some 392 days, and I accept that you have used this period to try and deal with your issues. In a letter to the court you described the last 13 months as being the hardest in your life. You said that you had had plenty of time to reflect on the downward spiral of your life and you had used this time to good effect by undertaking a number of courses while in custody. This includes courses on work safety in the construction industry, hospitality and drug and alcohol relapse prevention.
15 You also claim to be abstinent from drugs, which claim is supported by the fact that your urine samples have been clean. It is also supported by the evidence from your brother Bart, who said that he had noticed a number of positive changes in you over this time. Your physical appearance had improved, you had expressed remorse to your family over all the trouble you had caused, you had been talking about signing with a local football league football club and getting back in touch with your traditional friends.
16 Your brother made it very clear to this court that he and your family were willing and able to support you when you got out of gaol. However it was also apparent from his testimony that you have tested your family to the limit and that they cannot face any more disappointments from you.
17 There was also reference from your best friend Joshua Riccardo, and in this reference he referred to a period where you had undertaken an internship at TriEnergy. He regarded you highly both as an employee and as a person.
Sentencing submissions
18 With respect to the appropriate sentence for your offences the prosecutor provided a sentencing range of four to five years to serve two to three years. While your counsel accepted that general deterrence called for a significant head sentence, she urged the court to consider imposing a long period of parole. You have served just over 12 months and your counsel submitted that you have served close to the appropriate minimum sentence.
19 In making her submission your counsel referred to the following mitigating matters: Your plea of guilty, which had been at an early stage and had saved the expense of a trial; your relative youth, as you are only 24; your good engagement in educational courses while in custody; your family's support; your insight into your offending and good chances of rehabilitation; and the fact that this was your first period of actual imprisonment.
20 In submitting that your chances of rehabilitation were good your counsel relied in particular on Ms Carla Lechner's report, where she said that in light of your insight since being incarcerated, and abstinence from drugs use, reconnection with your family and positive attitude to engagement with treatment services your prospects of rehabilitation were favourable.
21 In response to your counsel's submissions the prosecutor pointing out that you committed these offences while you were on a suspended sentence and that general deterrence was of importance in this case, given the great problems faced by the community due to the use of ice. However, the prosecutor did accept that you appeared to have good prospects of rehabilitation and that a long parole period was not inappropriate.
Sentencing remarks
22 You are a stark example of how drugs such as ice can take hold of a promising young life and turn it upside down. All your early promise and talent as a footballer had been squandered for the sake of transient highs. I accept that you became depressed when injuries interfered with your career, and that this was a major contribution to your offending, however while this provides some explanation for your offending it is not an excuse. If everyone whose career expectations were not fulfilled went out and acted as you did our society would be chaotic.
23 In sentencing you I have taken into account all the mitigating factors referred to by your counsel. I have given you discount for your early plea of guilty, you are a young man and I have accepted that if your family provides you with support your prospects of rehabilitation are good. I have accepted the opinion of Ms Lechner in this respect. I have accepted that you have expressed regret and shame for your actions.
24 I also accept that underlying your drug dependency you were depressed and had lost your way, however I must balance these mitigating factors with the need for both specific and general deterrence. General deterrence has to be a significant factor in cases such as this. Drugs such as ice are, as your counsel aptly described, a scourge on society and those who are tempted to use or traffic in ice must realise that the consequences will be significant. Will you please stand up?
Sentence
25 On the charge of trafficking in a drug of dependence you are sentenced to be imprisoned to a term of imprisonment of three years and six months.
26 On the charge of possess a firearm while being a prohibited person you are sentenced to two years.
27 On the charge of possess a controlled weapon, to four months imprisonment.
28 On the charge of possess ammunition you are fined $800.
29 On the charge of escape from custody you are sentenced to six months imprisonment.
30 The base sentence is the sentence of three years and six months on Count 1. I cumulate six months of the sentence on Count 2 on Count 1, one month of the sentence on possess a controlled weapon also on Count 1, and two months of the sentence on escape from custody also on Count 1. Your head sentence is therefore four years and three months. I fix a non parole period of two years and three months. But for your plea of guilty you would have been sentenced to six years to serve four. I declare 392 days pre-sentence detention. I make a disposal order for the items in the schedule. I make a forensic order for the items also in an attached schedule. I make a 464ZF order on the basis that it is by consent and in the interests of the community.
31 Yes, is there anything arising from the sentence?
32 MR JONES: No Your Honour.
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