Director of Public Prosecutions v Kennedy, Malcolm
[2012] VCC 1892
•20 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00779
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MALCOLM KENNEDY |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 August, 2012 | |
DATE OF SENTENCE: | 20 November 2012 | |
CASE MAY BE CITED AS: | DPP v Kennedy, Malcolm | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1892 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – attempted armed robbery and armed robbery – confession to offending – public policy reasons for encouraging disclosure of offending and admissions of guilt – exceptional circumstances – wholly suspended sentence imposed
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms F Holmes | Craig Hyland solicitor for Public Prosecutions |
| For the Accused | Mr T Marsh | Victoria Legal Aid |
HER HONOUR:
1 Malcolm Kennedy you have pleaded before me to one Charge of attempted armed robbery and one Charge of armed robbery. The offences are serious as is evidenced by the maximum penalties that are prescribed by Parliament, namely, 20 years’ imprisonment for attempted armed robbery and 25 years’ imprisonment for armed robbery.
2 In addition you have admitted your criminal record. That record spans the period from 8 August 1991 until 18 February 2008. In the past you have been convicted and undergone a variety of sentencing dispositions for matters relating to driving, possess and use cannabis, attempted robbery, failure to comply with community based order, recklessly cause injury, assault police, wilful damage property, failure to comply with an intervention order and intensive corrections order; so you have been offered a lot of opportunities, in the past, by the Courts.
3 The prior conviction for the attempted armed robbery on 1 September 1998 relates to an occasion on 10 June 1998 when you entered the Commonwealth Bank at Werribee Plaza and attempted to rob that bank, however, the security screens were activated such that you fled the bank without receiving any money. A short time later you made your way to the Werribee police station and handed yourself in. You were formally interviewed and made a full and frank admissions in relation to your involvement in the offending. On that occasion you were sentenced to six months’ imprisonment to be served by way of an intensive corrections order with conditions that you undergo specified programs for alcohol and other drug treatment.
4 I shall now proceed to sentence you on the basis of the Crown opening there being no dispute in relation to that at the time of the plea hearing.
5 Briefly, this offending concerns one day, namely, Thursday 16 September 2010. That incident was captured on CCTV footage. On that day, you approached a shop keeper at the Celebrations Liquor Store, Old Geelong Road, Hoppers Crossing at around 3.00pm. You removed a black-handled kitchen knife from the front of your pants and held it in your right arm. You pointed the blade of the knife towards the shopkeeper and said “Give me all the money”. The shop attendant grabbed a cordless phone and told you that he was calling the police, and as a result of that, you fled the store.
6 On the same day at about 4.50pm you went to the Safeway Liquor Store at the corner of Watton and Cherry Street, Werribee. You entered the shop and asked the attendant for a key to the toilet. She apologised and said that she did not have it. You left and about 10 minutes later you returned and placed an open backpack on the counter facing the attendant and said “Give me your money.” The attendant did not consider you to be serious until she looked in the bag and saw the knife. You then said “Give me the money and I won’t hurt you”. You removed the knife from inside the backpack and held it in your hand. You kept saying “Get the money” and began acting aggressively. She was attempting to open the cash register but was unable to remember her password. She eventually did and placed about $1,300.00 cash into your bag. You then left the premises.
7 Some 18 months later on 22 February 2012 at about 6.45pm you attended the St Kilda Road police station and told them that you wanted to make a confession to being involved in these two offences. Police took you to the Alfred Hospital initially. The following day you were taken to the Altona police station where a record of interview was conducted during which you made full admissions to committing the offences. You were shown images of the relevant CCTV footage and identified yourself. You told police at the time of the offending that you had been drinking heavily, and you were very intoxicated and you were not really thinking. You were just wanted some money.
8 Mr Marsh, on your behalf, highlighted a number of matters in mitigation. He emphasised your voluntary disclosure of the offending. Ms Holmes, on behalf of the Crown, conceded that without your voluntary admissions that it would not have been possible to have obtained convictions against you there being no forensic or other evidence to link you to the commission of these offences.
9 The Courts have always highlighted that there are good policy reasons why, when a person comes forward for sentence, that a considerable element of leniency should properly be extended by a sentencing Judge where a guilty person has come forward and disclosed the fact of an offence having been committed and confession of guilt of that offence.[1]
[1]R v Ellis [1986] 6 NSWLR 603 at 604 per Street C J
10 I have had regard to your voluntary disclosure and your early plea of guilty. The sentence that I am about to impose will reflect a significant discount for your cooperation. There was a real likelihood that the police would not have been able to secure conviction without your voluntary disclosure. As was stated by Ormiston J in R v Lomax [1998] 1 VR 551 at 561,
“A considerable element of leniency should properly be extended to persons who voluntarily disclose their guilt in order to encourage guilty persons to come forward and disclose their offences.”
11 I accept that your early plea of guilty does reflect remorse for your offending. When you went to the police you indicated to them that you wanted to confess to get it off your chest and to have a clear conscience so that you can make a clean start.
12 By your plea of guilty you have spared the victims the necessity of having to come to court and give evidence on your trial and you have spared the State the cost and inconvenience of two trials and you have thereby facilitated the course of justice.
13 Notwithstanding your comprehensive prior criminal history, I am satisfied that you are generally remorseful and are desirous of having a more law-abiding lifestyle and that is reflected in the fact that there are no outstanding offences and that you have complied with all the conditions of your bail, which, for a person in your situation, is of some real significance.
14 I am satisfied you have now reflected deeply on your criminal offending and now express the desire to turn your life around, and from the reports that I have in my possession, it is clear that you are no longer using and abusing alcohol and drugs, to the extent that you were at the time of this offending. All those factors considered, I consider you have good prospects of rehabilitation.
15 I have been informed about your past history and background, and I note that you are now 38. You are have had a long-term relationship with Karen with whom you have three children, who are aged 9, 8 and 3 respectively. You are currently living apart from Karen, but remain in regular contact with her and the children.
16 I understand that you were raised in a family afflicted by alcohol. Both parents drank heavily. Your mother was physically violent towards you. Your parents separated when you were aged 12. You left the family home at 14 and lived above the Spotswood Hotel with a friend’s family. For many years you were homeless. You have a long history of drug and alcohol abuse. You left school in Year Seven after you were expelled from Williamstown High School. You have had some work as a skilled labourer. You have a forklift licence and safety and electrical certificates. You have worked as a knife hand and at a hire company. Currently you are receiving Newstart Allowance.
17 I reviewed the reports provided from Dr Aaron Cunningham dated 21 March 2012, Dr Michael F Bradley dated 31 July 2012 and a neuropsychological report from Mr Luke Delaney dated 14 August 2012. In addition, I have received a report from Professor Mullin, psychiatrist with Forensicare. Essentially, the material in those reports confirms that you have a history of substance use disorder. Having regard to the investigations, I do not consider that you have any Acquired Brain Disorder. There is some evidence of mood instability but that is being managed by the prescription of Zyprexa, and you are currently under the care of Dr Michael Bradley, General Practitioner.
18 Mr Delaney, neuropsychologist, assessed you as not suffering from an acquired brain injury. He estimates your intellectual ability to be in the low average range. Your overall cognitive abilities are in the expected average to low average range and you tend to get overwhelmed if presented with too much information at the one time, but you do have normal capacity to learn. He noted that you have reportedly made great gains in reducing your use of illicit substances, alcohol and prescription benzodiazepines over the past six to eight months before he saw you.
19 Dr Cunningham noted that you met the DSM – IV criteria for Substance Use Disorder. You present as a poly substance abuser with dependence to alcohol, cannabis, amphetamine, opiates and benzodiazepine. He recommended drug and alcohol counselling to cease substance abuse. He noted your motivation to stop drinking and substance abuse and expressed motivation to engage in drug and alcohol counselling. He considers you have positive prognosis if you maintain treatment.
20 Those sentiments are reflected in the report of Professor Paul E Mullen dated 3 October 2012. He notes your expressed desire to abstain from drugs. He recommends a period of residential drug rehabilitation. You need ongoing support and encouragement to maintain abstinence. Importantly, he does not consider that you suffer from a psychiatric illness nor an acquired brain injury.
21 I have had regard to the submissions made by Mr Marsh, and overall, I consider a wholly suspended sentence is warranted, having regard to the particular circumstances of your case.
22 The offending occurred on 16 September 2010 and therefore a wholly suspended sentence is only available where both an “exceptional circumstances” test and an “interest of justice” test has been met. Those tests are set out in s27(2B) Sentencing Act [1991] as previously enacted.
23 Armed robbery and attempted armed robbery are defined as serious offences.
24 Overall, I consider that exceptional circumstances are made out having regard to a combination of factors including that :
1. You voluntarily disclosed the offending the subject of the indictment;
2.The fact that it would not have been possible for the prosecution to secure convictions in respect to the offences unless you made the admissions, there being no DNA, fingerprint or credible evidence to link you to the offending;
3.It is good public policy to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence;
4.You are a person who comes with a complex history of alcohol and drug abuse fully documented in the material before the Court. In the last six to eight months you have made real strides in overcoming what has been a situation that has plagued you since your teenage years;
5.You are a responsible person who has the ongoing care of three young children, currently you are maintaining regular contact with them and are building a more positive relationship with their mother, which, in contrast to your past history, is a positive step.
6.And finally, you have stated that you desire to undergo counselling and treatment in respect to your underlying drug and substance abuse issues and, finally, you are committed to dealing with your mental health issues.
25 So all in all, those factors combine such that I consider that a suspended sentence is appropriate and shall be imposed in the circumstances of the case.
26 Mr Kennedy, a suspended sentence is still a sentence of imprisonment with all consequences such a sentence involves. The difference is that you will serve it in the community. It is on your record and it is a case that if you re-offend during the operational period, you can be brought back before the Court and dealt with in respect to the breach. Absent exceptional circumstances you would have to anticipate having to serve the sentence I am about to impose. Would you please stand, Mr Kennedy.
27 The formal court orders will be, in respect to Charge 1, which is attempted armed robbery, you will be convicted and sentenced to 12 months’ imprisonment wholly suspended for a period of two years.
28 In respect to Charge 2, you will be convicted and sentenced to two years’ imprisonment wholly suspended for a period of two years.
29 Section 6AAA declaration, but for your plea of guilty I would have imposed a sentence of three years’ imprisonment to serve 12 months.
30 Now were there any ancillary orders sought on the last occasion?
31 MS HOLMES: No, Your Honour.
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HER HONOUR: No. So that completes the sentence. All right, so
Mr Kennedy, it is up to you now. You have demonstrated to the court that you are capable of fulfilling the requirements of the suspended sentence and I urge you, through your doctor, to see if you can be referred to an organisation something like “Turning Point” that can assist you even further. You have made great strides on your own, but there are specialist community services and in particular, I am aware of those that are offered by “Turning Point”, that may provide you with the necessary wherewithal to continue your rehabilitation in the community as well as you have been. All right.
33 OFFENDER: Yep.
34 HER HONOUR: So thank you.
35 OFFENDER: Thank you, Your Honour.
36 HER HONOUR: All right, so we can adjourn.
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