Director of Public Prosecutions v Kennett
[2023] VCC 1254
•20 July 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01593
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRIS KENNETT |
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JUDGE: | HER HONOUR JUDGE CARLIN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 July 2023 |
DATE OF SENTENCE: | 20 July 2023 |
CASE MAY BE CITED AS: | DPP v Kennett |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1254 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Attempted armed robbery – well-advanced attempt - 40 year old man – childhood hardship and cognitive limitations - significant history of alcohol and drug use
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:R v Verdins & Ors [2007] VSCA 102; Bugmy v The Queen [2013] HCA 37; Worboyes v The Queen [2021] VSCA 169;Newton (a pseudonym) v The King [2023] VSCA 22; R v Lee [2006] VSCA 80; Singh v The Queen [2011] VSCA 333
Sentence:Total effective sentence of two years and eight months with a non-parole period of one year and ten months.
Section 6AAA: Total effective sentence of four years with a non-parole period of three years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Fleming | Office of Public Prosecutions |
For the Accused | Ms D. Dempsey | Victoria Legal Aid |
| (For Plea) | ||
| Ms H. Edwards | ||
| (For Sentence) |
HER HONOUR:
1At about ten to six in the evening of Friday, 12 November 2021, pharmacist Charbel Tarabay was closing down his pharmacy and completing some final paperwork for the day. He was by himself and had closed the front roller shutter halfway down to stop customers from entering. The roller door was the only access in or out of the premises.
2Mr Tarabay noticed you enter the store and approach the counter. He told you that the shop was closed. You produced a Chemist Warehouse plastic bag, placed it on the counter and told him to, 'Give me all your Valiums, temaz, benzos into this bag'. You raised your arm and Mr Tarabay could see something that appeared to be metal protruding from your right hand. You said to him, 'You better not call the police [and] I have a blade'.
3Mr Tarabay activated a silent alarm under the desk before getting up from his seat to get the drugs you had requested. He retrieved several small bottles of diazepam and walked back to the counter, putting them down in front of you.
4As he was going to get more drugs you made a demand for cash. You told him you wanted all the cash and that he should get it within ten seconds. Mr Tarabay was afraid that you might stab him, and so he grabbed a small black stool, returned to the counter, and started to strike you to the head and body with the stool. He first struck you from the other side of the counter and then moved around and continued trying to strike you, causing your sunglasses to fall onto the ground.
5You also started bleeding from your head. You placed your hands up trying to stop the stool from hitting you as you moved backwards to the front door of the pharmacy.
6You got out the door by ducking back under the roller door and ran south along the street towards a red Holden Commodore.
7Mr Tarabay chased you as you ran towards the car. The car was about 50 metres away and as you got into it you yelled out, 'Go, go, go'. The car then sped off down the street. Mr Tarabay lost his footing while he was chasing you and stumbled into a nearby fence.
8CCTV footage obtained from a nearby residential premises showed you running from the scene followed by Mr Tarabay.
9Within about half an hour, police attended the pharmacy and secured the scene. They saw drops of blood inside the store and at the entrance to the store. They also saw the plastic Chemist Warehouse bag, which contained bottles of medication, on the ground and sunglasses on the floor within the store.
10They obtained a statement from Mr Tarabay and a nearby witness. That witness described, amongst other things, speaking to the victim, Mr Tarabay, asking if he was okay, and seeing that he was 'visibly shaken up'.
11Crime scene officers later attended and processed the scene. They took the pair of sunglasses, the Chemist Warehouse bag, and numerous swabs, including of apparent blood.
12CCTV footage from inside the pharmacy was also obtained. That CCTV footage captured the entire incident and confirmed the statement provided by Mr Tarabay.
13On Monday, 10 January 2022 the informant, being the police investigator in this matter, received notification from the DNA Management Unit of Victoria Police that a swab of blood from the black stool Mr Tarabay had used to strike you matched your DNA.
14On 8 March 2022 police attended your premises, which was a caravan at a caravan park in Murchison East and executed a search warrant. They took your mobile phone and a pair of black runners. They arrested you and took you back to Shepparton police station and interviewed you.
15You denied any involvement in the offending until the very end of the interview, when you were informed that your DNA had been located at the scene. You then said:
• 'I was fried, I was off my guts.'
• 'I've got nothing else to say about it.'
• 'I was so off my guts, to be truthful, so I don't remember.'
16You were charged and bailed.
17On 19 July 2023, that was yesterday, you pleaded guilty before me to one charge of attempted armed robbery. A plea on your behalf was conducted on the same day and it now falls to me to sentence you for your conduct. Your counsel, Ms Dempsey, submitted that a community corrections order was appropriate and within range. The prosecutor, Ms Fleming, submitted that a term of imprisonment involving a head sentence and non-parole period was called for.
18In determining your sentence, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[1] Some of those factors tend towards leniency and some of them point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence for you.
[1] Section 5(2) of the Sentencing Act 1991.
Your personal circumstances
19Turning first to your personal circumstances, which were outlined in the defence submissions, a psychological report dated 1 February 2023 and a neuropsychological report dated 26 June 2023. The psychological report was prepared by clinical psychologist Ms Carla Lechner, who saw you on 30 January 2023. The neuropsychological report was prepared by clinical neuropsychologist Dr Harriet Downing, who saw you on 23 May 2023.
20I also received a letter from Goulbourn Valley Alcohol & Drug Service, an admission and certification of completion from Curran Place Residential Withdrawal Program, and a Flood Recovery Support letter.
21You are now 40 years old and live by yourself in the caravan park in East Murchison. As I say, you were living there at the time of the offending.
22You were born in Melbourne and grew up in Fawkner. Your parents separated when you were very young, after which you were raised by your mother and saw your father once every two weeks or so.
23You have a younger brother, Barry, and a half-sister from your father's subsequent relationship.
24Your mother was chronically unwell when you were a child. She suffered from an inherited kidney disease and received dialysis three times a week prior to a kidney transplant which ultimately failed. There is no doubt your mother's ill health made your childhood difficult. Her health issues meant that at times she was unable to care for you and your younger brother and as a consequence you lived with your father for several years in your early teens.
25You became your mother's carer when a teenager, and from age 16 received a carers payment from Centrelink. You remained your mother's carer until her death at age 45 in 2008 when you were 25 years old.
26You attended school up until Year 9. You had difficulty concentrating, struggled academically, and reported being bullied. You were not diagnosed with anything at that time. You told Ms Lechner that you had few friends.
27You did not undertake any further education or vocational training after leaving school, but you did complete a Certificate 2 in Metal Engineering while serving a term of imprisonment.
28You have worked in various low-skill manual labour roles in welding and in warehousing. Your longest period of employment was 12 months with Direct Freight. You have not worked since 2018, when you were hit by a car and broke your leg. Currently you receive a Newstart allowance. In assessing your work history, I take into account the many years you spent as a carer for your mother.
29You have a 10-year-old daughter with whom you are close. She now lives in Yarrawonga with her mother, your ex-partner, and you visit her about once a month. You had full custody of your daughter between 2016 and 2018 because of her mother's inability to care for her at that time. During those years you lived with your paternal grandparents and there was a period of stability in your life. You were working and were offence-free. However, in 2018 after you were struck by the car, your health and circumstances declined. Hospital records indicate that you suffered some amnesia, a tibia/fibular fracture but no acute intracranial or cervical spine injury. In other words, you had a broken leg but no broken back nor a severe head injury.
30Your unemployment, alcohol and drug use following this accident meant you were unable to provide adequate care for your daughter, who returned to live with her mother. At around this time you assaulted your grandmother, and your grandparents obtained an intervention order against you, and you had to leave their premises.
31You have some contact with your brother and your half-sister but not much. You are still in contact with your father although you are not close.
32You now have a good relationship with your paternal grandparents. They provided a letter of support to the court. I will come back to this letter shortly. Your paternal uncle was in court yesterday and drove you here today; his presence shows that you have family who are on your side.
33The caravan park where you live was flooded recently, damaging your caravan, which was no doubt very stressful. The peer group at this park is not a good one because of their use of alcohol and drugs. You told Dr Downing that you have few real friends, only 'drinking partners or users', being drug users.
34You presented to hospital following the offending before me. You had a laceration to the scalp vertex, which was a superficial head injury, and that was stapled. You were found to have a lower back fracture, but it was not considered necessarily acute and there is no suggestion that you sustained it in the altercation with Mr Tarabay.
35You have a significant history of alcohol and drug use. You started drinking alcohol and smoking cigarettes at age 15. From 17 to 20 you used cannabis. You report that in your 20s you occasionally took ecstasy and speed. You also told Dr Downing that you used ice only 'once in a blue moon' from age 27, although it is worth noting that you had used it on the day of the offending.
36Dr Downing pointed out that there were discrepancies in the timeline of your drug history and Ms Dempsey accepted that you had used alcohol and drugs heavily in recent years, including at the time of the offending.
37You told Dr Downing that from ages 22 to 28 you drank heavily and again, you did so after 2019 when you were evicted from your grandparent's house. You told Dr Downing that you drank a 4-litre cask of wine every day for two years up until you detoxified two weeks before you saw him.
38You also told Dr Downing that you misused prescription medications, including benzodiazepines, in particular Valium and Xanax, and opiates, in particular Codeine and Nurofen Plus. You said you overdosed from Codeine and Xanax in 2006, that you stopped abusing opiates sometime after that, and that you last misused benzodiazepines more than five years ago. This is doubtful given they were the target of your offending. At the time Dr Downing saw you, you were on the methadone program and had a prescription for diazepam. You were also on the methadone program at the time of your offending but told Dr Downing and the hospital that you attended afterwards, that you had not taken your methadone that day.
39You have detoxed from alcohol three times. Between 8 May 2023 and 13 May 2023 you voluntarily admitted yourself into Curran Place, a withdrawal unit. A letter from the acting manager confirms that you participated in the programs at that unit. Despite this and somewhat concerningly, you told Dr Downing that while you were motivated to maintain abstinence you were not interested in participating in any rehabilitation programs at that time and that you planned to achieve abstinence on your own.
40You have a long criminal history dated back to 2004 when you were 21 years old, and you also have subsequent matters. Your offending is consistent with someone with a long-standing drug and alcohol problem. The offences range from minor shop thefts to serious prior convictions in 2011 for armed robbery, two charges of attempted armed robbery and attempted theft.
41You have received a range of dispositions from fines, corrections orders, at least one suspended sentence and terms of imprisonment. You have breached all your corrections orders as far as I can see, whether they were imposed at first instance or as a result of fines being converted to community work. You also breached your suspended sentence. The courts have given you a lot of chances over the years, but unfortunately you have not taken those chances. Your first term of imprisonment was for the armed robbery and associated offences in 2011. You received a total effective sentence of four years with a non-parole period of two years. You were 28 years old. This sentence did not deter you and in 2013 and 2014 you received sentences of imprisonment again.
42You did go for five years without appearing before any court between 2014 and 2019. As I have said, this coincided with a period of stability when you were living with your grandparents and had care of your daughter.
43Returning now to your grandparents' letter, they say that you speak once a week with them, sometimes with your daughter with you. They say that you have made 'significant improvements to [your] life in the last two years'.
44In this regard, as I have mentioned, you completed a six-day voluntary admission for drug and alcohol treatment at Curran Place. Your counsel provided a certificate of completion to the court outlining the programs that you participated in such as Narcotics Anonymous and Alcoholics Anonymous, and programs on harm reduction and relapse-prevention strategies.
45Sally Robson from Goulbourn Valley Alcohol and Drug Service was the senior alcohol and drug social worker who counselled you prior to and after your time at Curran Place, across four sessions over the phone. In these calls you discussed your motivation for getting treatment and maintaining abstinence and said it was to improve your relationship with your daughter, also your health, employment and living situation. In saying that, you certainly appeared to show insight as to a significant cause for your problems in life.
46A support worker from the flood recovery service met with you after your Murchison residence was damaged. In an undated letter Barb Mangles said that she had met with you no less than fortnightly since 13 February 2023 and she was impressed by your commitment to achieving your goals.
Objective gravity of your offending and moral culpability
47Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender. If there was any doubt about the seriousness of your offence the maximum penalty of 20 years makes it clear.
48I agree that your offending was not terribly sophisticated, but at the same time I do not consider it could be described as opportunistic. It clearly involved some planning, as you had a getaway car with a getaway driver at the ready; you disguised yourself by wearing not only a mask, which may have been mandated at the time, but also gloves and dark sunglasses, you brought along an empty plastic bag, and you entered the pharmacy at a time when it would have been completely obvious to you that the pharmacist was in the process of closing up and was likely to be on his own and defenceless. In that regard, I note that the roller door at the entrance to the pharmacy was half shut.
49It is true that the whole incident lasted only just over two minutes, but armed robberies on soft targets are usually fairly brief as that is the aim: to get in and get out as quickly as possible. Further, this was a well-advanced attempt to commit an armed robbery only thwarted by the actions of the victim in grabbing a stool and hitting you.
50It is also true that you did not brandish the screwdriver and that a screwdriver may not be as dangerous or as frightening as some other weapons, however, given you told the victim that you had a knife and revealed just so much of the screwdriver that it might appear to be one, these facts are hardly mitigating. Further and in any event, a screwdriver is still a weapon capable of inflicting serious harm.
51All up, noting the wide spectrum of seriousness which exists within any offence, I consider your offending to fall at least in the mid-range of seriousness for the offence of attempted armed robbery.
52As far as your moral culpability is concerned, you told Ms Lechner:
'It was just stupid. Most of that night me and a couple of mates were driving around Shepparton trying to get ice. Got some in the morning, got a call from a Turkish woman I'd once slept with, said she was being beaten by some men, so we rushed down and I forgot to get my methadone. Got her, packed the car with her stuff and realised it was after 5.30 and I had no way of getting my methadone and would go without Friday, Saturday and Sunday. And the ice was not working to help with the pain'.
53Ms Lechner goes on to say you told her that you were feeling pain and weakness in your leg and that you feared it would worsen without medication, hence you 'Thought [you'd] get some Valium'.
54As I said to Ms Dempsey, I find your explanation to be implausible both as to why you attended Melbourne in the first place and also why you attempted the armed robbery. I accept that you were motivated by drug addiction, but the drugs you were seeking were not for pain relief and you were seeking far more than was necessary to counter any acute withdrawal symptoms or immediate desires. Further, you not only sought drugs, you also asked for 'all the cash' to be given to you within ten seconds.
55You also told Ms Lechner that:
'I regret what I've done. I hope he [being the pharmacist] doesn't have any nightmares. I apologised at the time and said I needed it. I wish I could say sorry again. I need help'.
56As I also said to Ms Dempsey, I do not accept this account either. It is inconsistent with the account of the victim, who made two statements, one contemporaneous and one 12 days later. According to his description your behaviour was menacing and threatening, not apologetic, although he did say that you seemed pathetic and a real deadbeat.
57Dr Downing described you as appearing to:
'Function at a level consistent with someone with an intellectual disability.’
However, he also said that:
‘due to [your] age, the quality of available information and the presence of other factors that might impact his cognition and daily functioning, it was difficult to provide diagnostic certainty'.
58As to the relationship between your cognitive functioning and the offending, he considered that:
'[Your] cognition was overall more likely to have been a moderating factor with your substance use problems being a mediating factor for the offending'.
59He said that where your cognitive functioning 'might be relevant' was in your poor problem solving. He gave the example of you reporting to him having seen your GP to request medication prior to the offending and that you were not able to generate alternative options to meet your needs other than the offending behaviour.
60Dr Downing's last statement as to the relevance of your poor problem solving, which was only expressed as a possibility in any event, was based on her acceptance of your explanation for the offending, which as I have already said I do not accept except in so far as you were seeking drugs.
61Ms Lechner's opinion was that you had:
'Symptoms of alcohol-use disorder, opiate-use disorder managed by a replacement program, and major depressive disorder that has arisen in the setting of a history of childhood hardship, limited familial or social networks and genuine cognitive limitations'.
62In terms of the relationship between your psychological profile and the offending she said that you had:
'A limited range of adaptive coping skills and under pressure is likely to act impulsively without considering the long-term consequences [and also that] it would appear that his already limited problem solving and decision-making skills were further adversely impacted by the ingestion of ice. In the face of not being able to access his prescribed medication for the weekend and already feeling the impact of withdrawal, he attempted to access painkilling medication in a totally inappropriate manner'.
63Like Dr Downing, Ms Lechner's opinion, in so far as it touched upon your moral culpability, was predicated upon on acceptance of your explanation for your behaviour. As I have already said, you were not seeking painkilling medication, as Ms Lechner said you were, you were seeking large quantities of benzodiazepines, as well as cash. Further, for reasons already explained I do not consider that your offending was impulsive.
64There can also be no doubt you understood that what you were doing was very wrong. This is evidence by the fact that shortly after the offending you attended the Austin Hospital and pretended you had sustained your injuries in a pushbike accident rather than in the circumstances in which you did. Further, when you were finally arrested and interviewed four months after the offending, you denied the offending until it was no longer possible to do so and then claimed to have been so affected by drugs that you had no memory of it at all. This is a completely inconsistent account with the account you later gave Ms Lechner and Dr Downing.
65In my view your subsequent explanation to Ms Lechner was an attempt to minimise your offending because you were well aware of just how bad it was. Dr Downing said that at the time she saw you, you 'showed an awareness that the offending behaviour was wrong and ways in which it might have impacted the victim', which she said pointed to a degree of moral reasoning.
66Ms Dempsey did not argue that your moral culpability was lessened because of any mental impairment, that is Verdins[2] limb 1, but she did argue that it was reduced because of your background of social disadvantage and the general, not the specific, principle of Bugmy[3]. I accept that there were difficulties in your childhood and I take them into account in a general sense. You were not responsible for those matters; they were matters beyond your control. I also accept, as was said by the Court of Appeal in the recent case of Newton,[4] that childhood deprivation need not be profound before it can reduce moral culpability, however, I am not satisfied that the particular difficulties you faced were such as to have that effect.
[2]R v Verdins & Ors [2007] VSCA 102.
[3]Bugmy v The Queen [2013] HCA 37.
[4]Newton (a pseudonym) v The King [2023] VSCA 22, [37].
67In all the circumstances I consider your moral culpability for this offending to be high.
Impact of your offending
68I am required to take into account the impact of your offending on your victim.[5] As I have already said, a witness to the immediate aftermath of the offending described Mr Tarabay as appearing shaken up. Mr Tarabay described himself in one of his statements to the police as feeling like the incident was surreal and when he is alone that he always needs to have an exit. He described a paranoia that has become a reality.
[5] Section 5(2)(daa), (da) and (db).
69In a victim impact statement, which was signed yesterday and provided to the court today, Mr Tarabay elaborated on the effect of the crime on him. He confirmed that he still has feelings of paranoia and that he sometimes panics, only being able to calm down when he can find an object to defend himself. He considers that he is emotionally less able to deal with stress and describes himself as becoming quickly emotional when outside his comfort zone. He says he has a sense of insecurity and queried how someone could commit a crime against a health worker, as he was, in the middle of a pandemic.
70Mr Tarabay also went on to talk about the financial impact and the fact that after the offending he had to put security cameras in his home and that he has really lost his sense of enjoyment of his work. He described going to the gym far more frequently than he ever did before the offending and feeling that he does not have many options with his life, given that he no longer feels the love and the passion for his profession.
71There is no doubt that Mr Tarabay has suffered long-term emotional consequences as a result of your crime.
Current Sentencing Practices
72To promote consistency of approach in sentencing, particularly the application of relevant principles, I am required to have regard to current sentencing practices. These may be gleaned from statistics or sentences imposed in other cases or both.
73The most recent Sentencing Advisory Council Statistics of the higher courts for the offence of attempted armed robbery, which deals with sentence outcomes between 1 July 2016 to 30 June 2021, indicates that overall, 81% of people sentenced for the offence of attempted armed robbery received a custodial sentence in one form or another. The majority received a term of imprisonment and about 10% received a youth justice centre order, reflecting that those offenders were young people. The most common term of the sentence of imprisonment imposed for the offence was a sentence between two to three years.
74Statistics of course are of limited assistance because they never tell you anything about the details of the case, although the range of sentences could be expected broadly to reflect the full spectrum of seriousness of the cases involved. And returning to the range of sentences revealed by those statistics, about 20% of sentences were less than one year and the highest sentence was between five and six years. That was in less than 1% of the cases.
75The other thing about those sentences is that some of the sentences would have been imposed during COVID and may have been shorter than previously, because of the combined effect of the Worboyes[6] principle and the increased burden of imprisonment, which was recognised by the courts during COVID.
[6] [2021] VSCA 169
76Of more value than statistics are sentences imposed in comparable cases. Such sentences are not binding precedents to be applied or distinguished, nor do they set the outer parameters of appropriate sentences, but they are a guide or yardstick against which to measure any sentence proposed in the instant case.
77I was not referred by either counsel to any comparable cases as such, but I have had regard to the two cases to which I was referred by the prosecutor involving armed robberies on soft targets.[7]
[7]R v Lee [2006] VSCA 80 and Singh v The Queen [2011] VSCA 333.
78Ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.
Plea of guilty, cooperation and remorse
79You are entitled to a significant discount in your sentence for the fact you have pleaded guilty, and you did so at a very early stage. In so doing you facilitated the course of justice and took legal responsibility for your crimes. You have also spared your victim and other witnesses the ordeal of coming to court to give evidence. The fact the case against you was overwhelming, given the DNA, does not detract from the utilitarian value of your plea of guilty. Moreover, our Court of Appeal has emphasised the high value of pleas of guilty entered during the pandemic which should be recognised in the sentences imposed.[8] In other words, sentences during COVID when there has been a plea of guilty should be less than they otherwise would be, that is, there should be a greater discount, and that principle still applies today.
[8] For example Worboyes v The Queen [2021] VSCA 169 at [39].
80Whilst your statements of remorse to Ms Lechner and Dr Downing were self-serving, I am prepared to accept that your plea of guilty is accompanied by remorse. This entitles you to an even greater discount and reflects favourably on your prospects for rehabilitation.
Your character and risk of reoffending
81Turning to your character and risk of reoffending, Ms Dempsey submitted that at age 40 you have finally recognised that you need to change. She argued that you have insight and the protective factors of loving grandparents, a daughter and potential National Disability Insurance Scheme supports. You also now have the absence of addiction.
82I certainly do not regard you as a hopeless case; however, your criminal history both prior to and subsequent to this offending cannot be ignored. You have the capacity to remain offence-free, as the gap in your offending between 2014 and 2019 shows, but unfortunately you have a tendency to relapse into drug and alcohol use and consequently into offending again. Further, the sentence you received in 2011 for armed robbery and related offences did not deter you from committing this offence.
83I am also not as hopeful as you seem to be about your ability to remain drug and alcohol free. Your ability to remain offence-free is inextricably linked to your ability to remain drug and alcohol free. As your history shows, you have had many relapses.
84At best I have guarded optimism about your future. I intend to allow for the continuation of the rehabilitation you have recently started by the setting of as low a non-parole period as possible consonant with the seriousness of your crime.
The burden of imprisonment
85In determining the appropriate sentence, I must consider how a term of imprisonment would be likely to impact you. It was not argued that you would have any particular difficulties in prison because of your cognitive limitations or psychological profile, but I do take into account that you are being sentenced during the COVID–19 pandemic. Although the restrictions imposed in prisons to prevent the spread of the virus have now largely been removed, I accept that you are being imprisoned in a time of uncertainty and that those restrictions may well be reimposed with the consequence that prison would once again be more onerous.
Purposes of sentencing
86Turning to the purposes of sentencing, I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation, and protection of the community. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required.
87The authorities have made it clear that in cases of armed robberies or attempted armed robberies against soft targets, which include pharmacies, that the principles of general deterrence and denunciation are particularly important.
88In a case of R v Lee[9] Vincent JA said:
'This Court has on a number of occasions emphasised the seriousness with which offences committed against persons who work in isolated and unprotected environments will be viewed. Such persons as taxi drivers and those who work in service stations, convenience stores or small family businesses are extremely vulnerable and are clearly entitled to the full protection of the law. That protection of the law means that the principle of general deterrence assumes considerable significance'.
[9] [2006] VSCA 80, [24].
89A later case of Singh v The Queen [2011][10] involved numerous armed robberies against soft targets, including on one occasion, a pharmacy. The Court of Appeal observed that armed robberies against soft targets, and they included the pharmacy in that description, had become prevalent.
[10] VSCA 333.
90Further, your criminal history makes it obvious that specific deterrence is also an important sentencing consideration.
91Ms Dempsey submitted that your cognitive limitations and psychological profile render you a less than ideal vehicle for general deterrence and for specific deterrence. She argued that the principles of general deterrence and specific deterrence should be moderated in your case. In other words, she relied on Verdins limbs 3 and 4. I have already dealt with these arguments in the context of your moral culpability. Suffice to say, just as I am not satisfied that your moral culpability is lessened by these factors, I am also not satisfied that the principles of general or specific deterrence should be moderated. Even if I am wrong, to the extent there should be any lessening of those principles, the need for community protection would be correspondingly increased.
92Ms Dempsey argued for a community corrections order. As I have said, as far as I can see you have breached every community corrections order you have ever had. In any event, your offending is just too serious and your mitigating factors not significant enough to warrant anything other than a term of imprisonment with a head sentence and non-parole period.
93Can you stand up please, now, Mr Kennett.
Sentence
94On the single charge of attempted armed robbery, I convict and sentence you to a term of imprisonment of two years and eight months; that is 32 months. I set a non-parole period of one year and ten months; that is 22 months.
Pre-sentence detention
95I declare that you have not served any days of pre-sentence detention, so no time will be deducted from the sentence I have imposed. It is up to the Adult Parole Board whether you are released after serving 22 months, but that is the minimum time at which you can be released.
Section 6AAA
96If you had not pleaded not guilty to the offence, I would have sentenced you to a total effective sentence of imprisonment of four years with a non-parole period of three years.
Disposal order
97The prosecution have sought a disposal order in relation to various items, including swabs, a Chemist Warehouse bag, the mobile phone seized from you and the black runners and the sunglasses found at the scene. There is no objection to that. I will make that disposal order.
98So, Mr Kennett, do you understand the sentence that I have imposed?
99OFFENDER: Yes, Your Honour.
100HER HONOUR: All right. Any other orders that I need to make?
101MS FLEMING: No, Your Honour.
102HER HONOUR: All right. I'll ask if Mr Kennett could be removed from the dock, please. Thank you, adjourn the court.
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