Director of Public Prosecutions v Kennett
[2022] VCC 207
•3 March 2022
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01302
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DALE LESLIE KENNETT |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 16 February 2022 | |
DATE OF SENTENCE: | 3 March 2022 | |
CASE MAY BE CITED AS: | DPP v Kennett | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 207 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Dangerous Driving Causing Death – Sentence following trial
Legislation Cited: Road Safety Act 1986 (Vic) - Sentencing Act 1991 (Vic)
Sentence: Total effective sentence of 3 years and 6 months imprisonment with a non-parole period of 2 years and 6 months.
Driver’s licence cancellation and disqualification for a period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Andrew Moore | Office of Public Prosecutions |
| For the Accused | Mr Campbell Thomson | Emma Turnbull Lawyers |
HER HONOUR:
1Dale Kennett, on 12 August 2021 a jury found you guilty of the offence of dangerous driving causing death, and not guilty on a charge of leaving the scene of an accident.
2On the evening of 9 to 10 March 2020 you had been at the home of a friend who was living in Henry Court, Hamilton. For a time you had been in the house, but at some point you decided to sleep in your car, which was parked on the front lawn of the property.
3That same evening a group of people connected with the Henry Court house, together with the victim Mr Young, were out visiting. This group of people caught a taxi back to Henry Court, dropping off two of the passengers, before driving away again with Mr Young and a Mr Kenneth Kelly. The two passengers who had been dropped off went into the house, and to bed.
4At around 2.45 am the taxi returned to the Henry Court address and pulled up across the driveway. You, at that time, were still asleep in your car, sitting in the driver’s seat. Mr Kelly and Mr Young got out of the taxi. Mr Young was leaning on the taxi for some time, and then for unknown reasons he came to be lying on the roadside, near where the rear of the taxi had been. His feet were near the gutter and his body at something like a right angle to the gutter, out onto the road.
5Mr Kelly realised that it was your car on the lawn and started banging on the windows and bonnet of your vehicle. He was angry at you for reasons that are not relevant. You were aware that he had an issue with you, and when he began hitting your car, you woke and immediately came to the conclusion that it was Mr Kelly who was making the racket and attack on your car.
6You told the police that earlier that week he had already confronted you two or three times, and you were scared he wanted to give you a hiding. He continued to bang on the car and to try to open the doors. You told the police you were afraid he was going to smash your windows and assault you, so you put your car in reverse, backed out and then took off down the road to get away from Mr Kelly.
7You also told the police that the windows of your car were fogged up from you having been asleep in it, that you were just waking up and that you did not see Mr Young on the road. Whilst you knew you had hit something, you did not realise it was a person.
8The evidence from the examination of the scene was that you backed out and then accelerated at a pace sufficient to leave tyre marks on the road. Applying the verdict of the jury on Charge 2 to the facts, I will sentence you on the basis that you did not see Mr Young on the road, nor appreciate afterwards that you had run over a person and either killed or seriously injured them.
9You drove away and a short time later you encountered a police vehicle which signalled you to pull over, on account of your inoperative headlight. You pulled over as directed, and got out to speak to the police officer to tell them that someone had attacked your car. You said you had driven away and may have run over a wheelie bin or something. You did not at that time realise you had run over Mr Young. Whilst you were speaking to the police officer the taxi driver pulled up and alerted the police officer to the incident. The police went to Henry Court, leaving you near your car, with the taxi driver.
10By driving over Mr Young you caused multiple injuries to his thoracic region, and thus caused his death.
Victim Impact
11Mr Young was 48 years old at the time of his death. His mother has written a victim impact statement on behalf of herself and Mr Young’s father, and their grandchild, Mr Young’s nephew. She describes how hard it has been to accept that their beloved son died in such a way. Mr Young lived with his parents, and his nephew. He was a support to them, and a mentor to his nephew. Mrs Young describes him as smart, intelligent, a brilliant artist, as a man who loved his family and who was generous of heart. She writes:
I know it is hard for anyone to understand that agony of losing one of your children and I hope you never do. I would like to think one day I can listen to music and read a newspaper, and Graham go fishing and do what he likes. All we want for our son is some peace and Justice he deserves.
12Mr Young’s sister Tammy described the trauma of the sudden loss of a beloved brother, and the loss she and her family feel. She, and her family, have struggled not only with the grief of their loss, but also with coming to terms with the unfairness of such a death. Life had been going on as normal, until this occurred, and the shock and sense of loss to them all has been profound.
Personal Circumstances
13You are now 54 years old. You grew up in western Victoria. Your childhood was afflicted by violence from your step-father towards your mother, and then when you tried to intervene to protect her you were also beaten by this man. You were sexually abused between the ages of 6 and 12, by an uncle.
14You found work as a roustabout, in a timber mill and then at an abattoir, but for the last seven years or so you have not worked, and have received the disability support pension.
15You suffer from multiple physical and mental health issues. I have been told that your thyroid was removed due to cancer and as a result you must take medication to counter the loss of this gland. You suffered spinal and skull fractures in 2017, in a motor vehicle accident. You have high blood pressure, deep vein thrombosis and Hepatitis C.
16You also have a history of mental health issues and are currently prescribed an anti-psychotic medication.[1] That same medication was in your system at the time of this offence.
[1]Neuropsychological Report by Dr Evans dated 24 January 2022, see [39] for summary (Dr Evans Report)
17After you were charged with this offence you were on remand for around 9 months, before you were bailed in December 2020. In January and February 2021, you took part in four drug and alcohol counselling sessions and are reported to have engaged well. You reported that you had not been using any illicit substances. The same counsellor, as your Dual Diagnosis case manager, saw you 17 times between 7 January 2021 and 8 July 2021. Again, you engaged well and reported that you had not been using drugs. Your counsellor closed your file as she did not think you needed further support. You say that you have not used either cannabis or ice since you were released from custody in December 2020.
18In January 2022 you were finding it difficult to cope. Your son was facing criminal charges, and your relationship with your partner was suffering. You were arrested on 25 January 2022 for offences which have yet to be resolved, and were on remand for those offences, but not the charge before me, until the date of the plea hearing.
19Your plan, on your ultimate release, is to live in Ararat with your partner, her son and your son.
20Your traumatic experiences as a child have had a profound effect on you throughout your life. You commenced using Cannabis whilst still in primary school, and methylamphetamine in your late teens. You found school difficult, and you left at around age 15. You have a lengthy criminal history for dishonesty, drug related offending, assaults and low level driving offences. Your criminal history illustrates how the many issues affecting you have impacted your behaviour. You were on a CCO at the time of this offence, which had been imposed on 12 December 2019, with conditions intended to address your abuse of drugs, and your mental health issues.
Mental State
21Your cognitive capacity was assessed by a neuropsychologist, Dr Evans, in January 2022.[2] Dr Evans’ report is comprehensive and covers not only her interview and testing of you, but also her review of independent sources of information. The relevant findings include:
(a) Functional memory deficits were not apparent, and reported difficulties with memory were associated with impulsivity, variable attention, and other factors;[3]
(b) Your performance varied depending on your interest level, but you did not appear to be faking your responses;[4]
(c) Your literacy and numeracy were at about Grade 6 level. You can understand basic writing and verbal information but struggle to comprehend complex spoken or written information;[5]
(d) Overall your full scale IQ was assessed at 75,[6] which is in the very low range, just above intellectual disability; and
(e) Your ability to reason and problem solve was intact when presented with simple problems, but decreased when the requirements became more complex.[7]
[2]Exhibit D2 on Plea, Neuropsychological Report by Dr Evans dated 24 January 2022 (Dr Evans Report)
[3]Dr Evans Report [27], [35]
[4]Dr Evans Report [29], [34], [40]
[5]Dr Evans Report [32]
[6]Dr Evans Report [45], see also [33]
[7]Dr Evans Report [36]
22Regarding your cognitive functioning at the time of the offence, Dr Evans considered:[8]
[T]he contribution of Very Low intellect from the outset, together with the negative impact of long standing cannabis and methamphetamine abuse, are considered to be the key elements to his cognitive profile at the current time. Hence, in the context of minimal cognitive reserve, I consider Mr Kennett primarily declares a pattern of cognitive inefficiencies most consistent with a substance related acquired brain injury.
[8]Dr Evans Report [43], see also [45]
Drug Impact on Offence
23There was evidence from a blood sample which had been taken from you at 4.19 am on the morning of this offence, that your blood contained:
(a) 0.34 milligrams of methylamphetamine per litre of blood;
(b) 0.05 milligrams of amphetamine per litre of blood;
(c) 4 nanograms of THC (which is the active ingredient of Cannabis) per litre of blood; and
(d) 0.03 milligrams of Aripiprazole (which is a prescription anti-psychotic drug) per litre of blood.
24You told the police that you had not used methylamphetamine on the day of the accident, and although you may have used cannabis, you did not think you had.
25Dr Schreiber gave evidence that research showed an association between use of methylamphetamine and motor vehicle collisions, so that the “odds” of crashing a car were about 19 times higher if a driver had methylamphetamine in their system, as compared to a person without that drug in their system.[9]
[9]Transcript of Proceedings dated 5 August 2021, page 327
26Dr Schreiber considered that the reading of methylamphetamine in your system was high, and that you were possibly in the rebound phase of use of that drug.[10] He was careful to state, however, that he was not giving an opinion about the effect of the drugs found in your blood upon you, but rather general evidence about the significant risk to the public posed by the presence of methylamphetamine in the blood of a driver.[11]
[10]Transcript of Proceedings dated 5 August 2021, page 336
[11]Transcript of Proceedings dated 5 August 2021, page 323
27Based on the evidence I cannot find beyond reasonable doubt that your driving and judgment were impaired by reason of the drugs in your system.
Sentencing Considerations
Prospects of Rehabilitation
28Accepting that you have been able to remain drug free since December 2020, this is a very positive step for your future. In view of your long history of use of both methylamphetamine and cannabis there remains a real possibility of relapse, and hence further offending, but it is positive that you have managed to stay clean for this period of time.
29On the other hand, I note the opinion of Dr Evans as to your self-absorbed world view, and your limited capacity to self-reflect, demonstrate empathy and understand cause and effect relationships between your own conduct and the results of it on your life. Dr Evans said:[12]
Additionally, despite sufficient awareness about his longstanding criminal activities and the likely personal ramifications of continued re-offending, the capacity to take ownership of such behaviour was poor. Finally, his ability to recognise the seemingly repetitive nature of his offending, as well as his capacity to independently effect change, was less than convincing, particularly when pressed about any potential strategies to minimise recidivism. Furthermore, Mr Kennett indicated he had participated in numerous prison-based rehabilitation programs without benefit, and as such, his willingness to participate in any recommended treatment programs or counselling to assist change, impressed as minimal.
[12]Dr Evans Report [23]; see also [41], [52]
30As to your attitude to this offence, Dr Evans noted:[13]
Mr Kennett did not overtly accept the wrongfulness of his behaviour and persistently attempted to justify his actions: often suggesting others would react in a similar manner under the same circumstances. Hence, a minimal capacity to reflect on his actions as well as an external locus of control was indicated.
[13]Dr Evans Report [20]; see also [23]
31Dr Evans assessed your risk of reoffending as high, mainly by reference to your prior offending and the reasons for it.[14] Ultimately, I consider your prospects of rehabilitation in respect to offending generally are guarded. In respect to driving offences of the type that brings you before me, I consider the risk of you committing a further offence of this nature is low.
[14]Dr Evans Report [53]
32Specific deterrence remains a factor in sentencing, although the utility of prison to promote this in you seems limited.
Gravity of Offending
33I take the following factors into account in assessing your offending:
(a) Your view out of your car was reduced by reason of the fogged up windows;
(b) It was dark, although there was street lighting, and the headlights of the taxi illuminating the area;
(c) Your car had but one working headlight;
(d) There were people in the area, being Mr Kelly, Mr Young, and the taxi driver, but you were unaware that Mr Young was lying on the road;
(e) You had been asleep, then woken suddenly by the attack by Mr Kelly, and you reacted in fear;
(f) After you reversed out of the driveway you accelerated at such a rate as to leave tyre marks on the road surface;
(g) You had drugs in your system. Whilst I cannot find beyond reasonable doubt that these had a negative effect on your driving and decision making, the presence of such substances was itself a breach of the Road Safety Act;[15] and
(h) You were on a community correction order at the time of the offence.
[15]Road Safety Act 1986 (Vic), s49(1)(bb), s49(1)(i)
34It was submitted on your behalf that these circumstances were unusual, and that taking all matters into account the gravity of the offending, and your culpability, was low. The prosecution disputed this, arguing that whilst not at the higher end, the gravity of the offending was clearly above the lowest end of the scale.
35It is certainly the case that features which would put your offending at the higher end of the scale, such as hoon driving or ignoring warnings, are not present in your matter. Nevertheless you accelerated at a sufficient rate to leave tyre marks on the road, in circumstances where you knew that at least one person was in the vicinity and when you could not see clearly out of your car windows. You should not have been driving at all, by reason of your inoperative headlight and the presence of illicit drugs in your blood. Even accepting that you reacted in fear, having been awoken abruptly by Mr Kelly, your decision to accelerate away when you could not see clearly out of your vehicle, was obviously dangerous and presented a significant risk of death or serious injury to people in the vicinity.
36Mindful of the limited utility in applying broad categories to offence gravity, I conclude that your offending was certainly not at the lowest end of seriousness for this offence, but rather falls somewhere in the mid-range of gravity.
Current Sentencing Practice
37I have reviewed the summaries prepared by the Judicial College of sentences imposed in a number of other cases. A significant point of difference between many cases and yours is that you do not have the benefit of the discount in sentence afforded by a plea of guilty. The impact of that discount on other sentences is very real, particularly since the onset of the pandemic.
Other Sentencing Factors
38The sentence I impose must take into account many factors and principles, including general deterrence, denunciation, just punishment, the effect of your offending on the victims, your culpability, and the features of your driving which made it dangerous in all the circumstances.
39I must also consider your prospects for rehabilitation, and specific deterrence, as well as your personal circumstances including your traumatic childhood, your cognitive functioning, and the quality of your life as a consequence of these factors.
40Whatever sentence I impose will not soften the loss and grief felt by Mr Young’s loved ones. Sentencing for this offence reflects that although the harm caused is the most grave addressed by the criminal law, it is an offence where the accused is not charged with having had any intention to harm any person.
41General deterrence is a factor in sentencing, ameliorated to a moderate degree by reference to your personal history, and your low level of intellectual functioning.
Category 2 Offence
42Dangerous driving causing death is a category 2 offence so that I must impose a sentence of imprisonment not combined with a community correction order, unless one of the exceptions set out in s5(2H) is met.
43Your barrister submitted that the combination of circumstances in this case are substantial and compelling, and exceptional and rare, justifying me making an order of imprisonment combined with a CCO.[16]
[16]Sentencing Act 1991 (Vic), s5(2H)(e)
44I note that in making the following analysis there is no burden of proof on you, as would have been the case if you were relying on the exceptions set out in s5(2H)(c).
45Whilst I accept that the circumstances of this offence are somewhat unusual, I do not accept that the circumstances of your case as a whole are “substantial and compelling circumstances that are exceptional and rare” so as to justify not imposing a sentence of imprisonment not combined with a CCO. As I have said earlier, I do not consider your driving was objectively at the lowest end of gravity. Driving a vehicle at night, with the view outside obscured by fogged windows, and accelerating heavily is obviously and inherently dangerous. Your culpability was increased by the fact that you were at the same time committing an offence under s49 of the Road Safety Act and that you were on a CCO at the time, imposed some three months earlier.
46I am also required to regard general deterrence and denunciation of your conduct as having greater importance, in this consideration, than the other factors set out in s5(1) of the Sentencing Act. I must give less weight to your personal circumstances. I must pay heed to Parliament’s intention that a jail term not combined with a CCO should ordinarily be made, and whether the cumulative impact of the circumstances of the case would justify departing from Parliament’s intention.[17] The application of the principle of parsimony is limited by s5(2H).
[17]Sentencing Act 1991 (Vic), s5(2HC) and s5(2I)
47Whilst your personal circumstances include a history of trauma and childhood neglect, you also have a lengthy history of offending and issues with the abuse of drugs. Your prospects of rehabilitation are, in respect to general offending, guarded. Whilst you have made some recent good efforts, you have work to do in this respect.
48The question for me to consider is not only whether the combination of circumstances are substantial and compelling as well as exceptional and rare, but also whether they justify the making of an order other than imprisonment not combined with a CCO. Taking all your personal circumstances, the circumstances of the offence, and the legislative provisions into account, I do not consider that the exception set out in s5(2H)(e) applies in your case, because however characterised, the combination of circumstances do not justify departure from Parliament’s intention.
Sentence
49Charge 1, 3 years and 6 months imprisonment, with a non-parole period of 2 years and 6 months.
50Your Licence is cancelled and disqualified for 18 months as required under s89(2)(a)[18], from 3 March 2022.
[18] Sentencing Act 1991 (Vic), s89(2)(a)
51I declare that you have served 284 pre-sentence detention days on these matters and direct that this declaration be entered into the records of the court.
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