Director of Public Prosecutions v Kennett

[2020] VCC 1993

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 18-02280

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROSEMARY KENNETT

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	21 April 2020
DATE OF SENTENCE:	21 April 2020
CASE MAY BE CITED AS:	DPP v Kennett
MEDIUM NEUTRAL CITATION:	[2020] VCC 1993

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	Ms A. Singh	Office of Public Prosecutions
For the Accused	Mr J. Barrera	Stary Norton Halphen Lawyers

HER HONOUR: 

1Rosemary Laura Kennett, you have pleaded guilty before me to two charges of trafficking in a drug of dependence, namely, in relation to Charge 1, methylamphetamine, and in relation to Charge 2, heroin. 

2The facts underlying this offending are as follows. 

3On 17 March 2018 at about noon, police saw you drive your BMW sedan and park it outside a block of flats in St Kilda.  There, a man who had been waiting on the footpath, got into the back seat, staying there for about 20 seconds.  He was known to police as a regular heroin user. 

4The next day, police were again performing crime investigation duties in the area at about 4.15 and again saw you driving your car, pulled over at the intersection of Carlisle Street and further observed another man get into the car in the back seat.  Police then followed that car into a nearby car wash, where the car stopped in a car park. 

5Detective Senior Constable Gentner approached the car and saw you reach into the back seat and give an item to the man who had just got in.  He opened the door and spoke to you, as well as the passenger. As the police officer was speaking, he saw the male passenger, Mark Barwick, move a small snap-lock plastic bag containing white powder and put it on the seat next to his leg.

6The car was then searched and the following items located.

7A magnetic box stuck to the metal frame under the driver's seat, containing snap-lock bags filled with a white crystalline substance, later found to be methylamphetamine and a white powder substance, heroin.  There was a mobile phone in the driver footwell, a set of digital scales in that footwell and a bag of white powder substance in the back seat left by Mr Barwick.

8Your actions in relation to the methylamphetamine and the heroin, which were clearly in your possession for sale, underly Charges 1 and 2 on the indictment.  You were arrested and cautioned and your - police made arrangements for the car to be taken to the St Kilda police station, you suggesting that it be moved to - nearby to where you lived. 

9Police asked you if you had anymore drugs in the house and you said, 'Just a few grams of ice'.  You also noticed that a neighbour saw the search being conducted, and you told police that you were concerned she would tell your friend, Hannah, who you believed would then come and steal things from your house.  You also said you had some bullets inside the house which you had hidden from Hannah, as she had a gun.

10You consented to police searching your home, telling them there was a reasonably sized amount of methylamphetamine inside.  A search of your premises then found snap-lock bags and another snap-lock bag with 78 grams of what was later found to be heroin, which was found inside a safe.  Another snap-lock bag containing 113.1 grams of methylamphetamine was also found in the safe.  Four snap-lock bags containing about 28 grams of cannabis were also found inside the safe.  That relates to the summary offence to which you also pleaded guilty, of possessing cannabis. 

11Two bags under the bed were found to contain spray cannisters and your possession of those underlie the further summary charge of possessing a prohibited weapon.  Police also found seven shotgun shells in a bathroom drawer.  That possession relates to the summary charge of possessing cartridge ammunition.

12You were cooperative and helped police in locating the items, including opening the safe, telling them, in relation to the drugs, that you did not realise that there was that much there.  You also told police you have cash down your underwear and removed $2,900, possession of which underlies the summary charge of dealing with the proceeds of crime.

13At this time you were on bail in relation to trafficking heroin, possessing heroin and dealing with property suspected of being proceeds of crime, alleged to have been committed on 25 January 2018.  This further offending therefore underlies the summary charge of committing an indictable offence whilst on bail. 

14It was also a condition of bail that you reside at an address in Ferntree Gully, which you clearly were not and your actions in not abiding by that condition underlie the summary charge contravening conduct condition of bail. 

15Ultimately it was found that you possessed 142.9 grams of a mixed substance, 160 grams of which was methylamphetamine.  A further substance containing heroin, that is, 79.5 grams, included 12.7 grams of heroin. 

16A trafficable quantity of methamphetamine mixed with another substance is three grams.  A commercial quantity of methylamphetamine mixed with another substance is 250 grams.  A trafficable quantity of heroin mixed with another substance is three grams.  A commercial quantity of heroin mixed with another substance is 500 grams.  In other words, this makes it clear that whilst you were not trafficking in commercial quantities, you were well over the trafficable quantity in relation to both methylamphetamine and heroin. 

17You participated in a record of interview, reserving your right to answer 'no comment' to the allegations.  You were then placed in custody. 

18The maximum penalty for trafficking in a drug of dependence is 15 years' imprisonment.  The maximum penalty for possessing a small quantity of cannabis is five penalty units.  The maximum penalty for possessing a prohibited weapon is two years' imprisonment or 240 penalty units.  The maximum penalty for possessing cartridge ammunition is 40 penalty units.  The maximum penalty for dealing with property suspected of being the proceeds of crime is two years' imprisonment.  The maximum penalty for contravening a conduct condition of bail is three months' imprisonment or 30 penalty units.  The maximum penalty for committing an indictable offence on bail is three months' imprisonment or 30 penalty units. 

19I now turn to your personal circumstances.  How old are you now, Ms Kennett?

20You are 31 years of age.  You told psychologist, Jeffrey Cummins, whose report dated 22 February 2019 was tendered on the plea; that your mother died of a drug overdose when you were about six or seven months of age and you were then placed in foster care, until being adopted by Mr and Mrs Kennett, whose surname you bear, when you were 11 months old.  You remained with them until you were 19 and have lived with them off and on since then.  Your adoptive father is a retired engineer and your mother, a retired maternal and child health nurse.  You told Mr Cummins you were relatively close to your mother, but noted that your father had recently forbidden you from residing with them because of your drug use and criminal history. 

21You have a 38 year old brother who works in the building industry and has been in minor trouble with the law.  He was raised by his biological grandparents.  You only met him in the last two or three years. 

22When you were about 18 or 19, you were in a relationship for about 18 months with a man, Jason, who was about 12 years older than you and he was involved with heroin, amphetamines, Xanax, and introduced you to those drugs.  He died of a drug overdose when you were about 19, but you have essentially remained addicted to drugs ever since then. 

23You had a reasonable experience at school, although you got into some trouble, passing Year 12 at Swinburne high school.  You told Mr Cummins that at primary school, you were assessed as being intellectually gifted and participated in accelerated educational programs.  You left school when you were 18.  Until you were 21, you worked at KFC and you have also intermittently undertaken some work in the hospitality industry.  About four years ago you started a diploma in beauty therapy at the Melbourne Institute of Hair and Nails in Richmond and told Mr Cummins that you were keen to complete that course.  Because of you chronic drug use history and symptoms of anxiety, you have been on a disability support pension since you were 24. 

24You underwent drug detoxification when you were 21 and at that time, you were diagnosed with symptoms of anxiety, depression and a borderline personality disorder.  Whilst there, you were medicated on Xanax and Valium and on the anti-psychotic medication, Largactil.  You were also afterwards prescribed an anti-depressant and you have taken methadone on and off for many years. 

25When you were about 22 or 23, you made a suicide attempt via an overdose on Xanax tablets and heroin.  At that time, you had suffered a home invasion and been assaulted.

26Other partners you have had in addition to Jason, include a man named Kyle, who you went out with for about three years between the ages of 20 and 23.  After the home invasion, you became increasingly dependent on heroin and then you formed a second relationship with a man called Robbie, who was seven years older than you and was repeatedly physically abusive towards you.  You then formed a friendship in late-2016 with a man, Jimmy Goodfellow and you were subsequently in an on and off relationship with him.  He is currently in gaol.

27You began using heroin when you were 18 or 19, although cannabis was your preferred drug.  Between 17 years of age and your early-20s, you intermittently used ecstasy and amphetamines - but heroin has been your main problem and you have been an intravenous heroin user since you were about 19.  You told Mr Cummins that whilst you have, in recent years, intermittently socially used methamphetamine, you mainly use heroin to block out anxiety.

28In relation to the current offending, you told Mr Cummins that you occasionally sold drugs to maintain your own supply.  Essentially you said to Mr Cummins, 'The thing is, I'm a heroin user, that's how I've lived my life over many years.'  Mr Cummins said that you apologised in relation to your offending, stating that you had previously tried to get into Odyssey, but were not able to because of your prior convictions for violence.

29Under the heading, 'Opinions and conclusions', Mr Cummins noted that you had had multiple partners and had several relationships where you were the victim of physical and emotional domestic violence. 

30It was Mr Cummins' opinion that as a result of being victim of the home invasion, that you may be suffering from a trauma-related disorder, such as a chronic adjustment disorder with mixed anxiety and depressed mood, although he did not believe you had sufficient specific symptoms to categorically make this diagnosis.  He stated, 'I formed the opinion she has most probably been living a generally irresponsible and reckless life since her early-20s and corresponding with her having multiple intravenous heroin addictions over this time.'  He believed, as a result of testing, that your risk of committing violent offences in the future was low.

31Ultimately, Mr Cummins stated, 'In my opinion, the likelihood of Ms Kennett committing further offences will be very much linked to whether or not she is ultimately able to remain drug-free on a long-term basis when released back into the community.  On the basis of my assessment of Ms Kennett, her prognosis is guarded.  On her account, she appears to have a very entrenched reliance on heroin.

32In relation to your prior convictions, you have a long history which entirely bears out - which essentially reflects your ongoing heroin difficulties.  You have prior convictions for theft, for burglary, for shoplift, for possession and use of heroin, cannabis, prescription drugs.  You have been placed on a community corrections orders, which you have breached.  

33In January 2016, you were sentenced to a term of imprisonment for recklessly causing injury, intentionally damaging property and various dishonesty offences, as well as trafficking methylamphetamine and possessing methylamphetamine. 

34When this first matter came before me in 2019, I was advised that you had been given the opportunity, after spending a period of time in gaol, to enter the Odyssey program, which you did on 31 July 2019 and I therefore deferred sentencing in this matter for you to take up that opportunity, which you did successfully.  I received positive reports from Odyssey, however you ended up leaving there in about late-December of last year, because the next stage at Odyssey required you to come off the supportive drug, Suboxone.  In the past you had come off that support and relapsed into re-offending and you were very anxious about doing this.

35You then went into what I have described as a very difficult situation. I allowed bail to continue, but you were living in a boarding house in St Kilda.  Your parents had just moved to Officer and were not prepared to have you at home.  You were then left in a rather difficult and isolated situation in St Kilda in boarding house accommodation over the Christmas period, whilst attempts were made by Launch Housing to find appropriate accommodation for you.

36That, in my view, was an extremely testing time and if anyone was ever going to relapse into drug use, it was you, at that period of time.  However, you managed to weather the storm, if I can put it that way.  You stayed off drugs and now you have been placed in a studio apartment in Dandenong.

37Whilst you were living in St Kilda, you continued to stay out of trouble.  You reported to police as required and I am satisfied that you have proved yourself to the point that I am prepared to consider placing you on a community corrections order. 

38I am going to deal the appeal separately, because it does not need to appear on the transcript.  This is just in relation to this matter.

39COUNSEL:  As Your Honour pleases.

40HER HONOUR:  I am satisfied that, as I have said, you have taken this opportunity and you have reached a point in your life where you wish to overcome this drug problem that has been bedevilling you ever since you were 19.

41You continue to receive what I regard as very good support from your parents.  They have appeared at every hearing.  They clearly love you very much.  They have helped you furnish your apartment.  You remain in support with them. 

42In all the circumstances, I am satisfied that you have undergone extensive rehabilitation.  This is not just in your best interests, but in the best interests of the community.  Apart from the violent offending, all of your offending has related to your ongoing drug use.  You are clearly an intelligent person, someone who would be able to study, to perhaps return to the diploma you undertook to carve out an appropriate future for yourself and as I have said, it is, in my view, in your interests and the interests of the community that you be given that opportunity to do so.  I am therefore prepared to place you, in relation to all the charges, on a community corrections order.

43You have been found suitable for this order.  It is probably helpful that you know what the Corrections the assessing officer had to say about you, Ms Kennett, because it is positive and helpful.  The officer stated that,
'Ms Kennett engaged well in the assessment.  She was coherent and concise, answering all questions in a clear and open manner.'  He said you expressed a keen interest to do a course in drug and alcohol and help others with their substance abuse issues and that is a very praiseworthy ambition that you have. 

44You were found to be a reasonably high risk of re-offending.  Again, it all depends on you staying off drugs, Ms Kennett.  You do not need me to say that.  I know that is perfectly obvious to you.

45Before I can place you on a community corrections order, I have to outline the conditions to you.  Could you stand up please.

·You must report to the Dandenong Community Corrections Centre within two working days.  That is, by Thursday of this week; 

·The order will last for 18 months; 

·Whilst you are on the order, you must not commit any offence punishable by imprisonment.  That does not mean that you have to be imprisoned, it just means, if you commit an offence like shoplifting, for which theoretically you could be gaoled, that will breach the order.  You will be brought back in front of this court and I will re-sentence you in relation to this matter;

·You must report any change of address or employment within 48 hours of the making of that change;

·You may not leave Victoria whilst you are on the order, except with the permission of the Community Corrections office;

·You must report to and receive visits from the Community Corrections office;

·You must not attend upon the Community Corrections office under the influence of drugs and alcohol;

·You must obey all lawful directions of the Community Corrections office.

46The special conditions are that:

·You are to be under supervision;

·You are to undertake offending behaviour programs.  They are actually useful.  They are useful because, as you know, when you have been using drugs for a long time and you have been committing crimes in order to support your drug habit, even though I know you have not resorted to that, that can be a way of coping, even if it is not in relation to drugs.  So there is a bit around your rehabilitation, which involves not just tackling the drug addiction, but the type of behaviours and the type of living skills that you develop, if I can put them that, whilst you are using;

·You are also to attend for assessment and treatment for drug abuse or dependency;

·You are also going to be - I am also going to place you on a mental health assessment and treatment program.  You suffer from post-traumatic stress disorder, basically because of the various violences you have been the subject of, both through partners and as a result of the home invasion and there will be judicial monitoring.

47Are you prepared to enter this order?

48OFFENDER:  Yes.

49HER HONOUR:  Thank you.  Just have a seat.

50I am going to place you on a second - in relation to the appeal, so we will need to do two community corrections orders.  In relation to the appeal, the orders of the learned magistrate are set aside.  You are to be placed on a community corrections order for a period of 18 months, in the same terms.  All right?  They will run concurrently. 

51It was suggested, even though it is not being carried out at the moment, that
I give you an order to - a condition that you undertake unpaid community work and I am going to do that.  The reason I am going to do that is, it gives you some structure.  You probably will not have to do it for a while, but I am going to order that you undertake 100 hours of unpaid community work and that will only be in relation to the first community corrections order, not the second.  So we will just wait while the paperwork.

52We will do the first judicial monitoring in - look, you are doing pretty well.  I will wait for another four months, all right?  So we will get a date in four months' time.  Now I am not sure how we are going to do that.  As of next week, I am largely moving to remote hearings.  We might even be able to set it up so you can get it through your phone.  I am not really sure, but we will try and work in a way that you do not have to come into court.  All right? 

53MR BARRERA:  As Your Honour pleases.

54HER HONOUR:  Thank you.  It will be 21 August at 9.30.  All right? 

55COUNSEL:  As Your Honour pleases.

56HER HONOUR:  Would you stand up please, Ms Kennett.  Just while we are doing that.  Are you feeling fairly confident about doing - to do this order?

57OFFENDER:  Yeah.

58HER HONOUR:  Do you reckon?

59OFFENDER:  Yeah.  Yeah. 

60HER HONOUR:  Is it different now for you, do you think?

61OFFENDER:  Yeah, definitely.  Yeah.

62HER HONOUR:  In what way?

63OFFENDER:  Um ‑ ‑ ‑

64HER HONOUR:  Just so I do not go away and worry about you, Ms Kennett, that is all.

65OFFENDER:  I dunno, I'm just taking it more seriously, taking my life - like my life more seriously.  It's my last chance. 

66HER HONOUR:  That is good.  You are about the age when people, if they are going to make a move - a change out of this, do so and I really hope it works for you, Ms Kennett, you have done really well.  You are a person of promise and ability.  It would be terrific if this did work for you, so I very much hope that it is successful ‑ ‑ ‑

67OFFENDER:  Thank you.

68HER HONOUR:  ‑ ‑ ‑ undertaken for you.  Have a seat.  Thanks, Ms Kennett. 

69I will just return the prior convictions, thank you very much. 

70I will just get you to sign those, thank you, Ms Kennett. 

71MR BARRERA:  May I assist, Your Honour? 

72HER HONOUR:  Yes, certainly, thank you.

73MR BARRERA:  Thank you.  Your Honour, one of them has the old address for Ms Kennett, the St Kilda address.  The other one has the right one of a Dandenong address. 

74HER HONOUR:  All right, we will just change that, thank you.  Sorry, I did not check that.

75Thank you very much.  I do not need to do a s.6AAA, which is one of the great joys of giving a CCO. 

76I thank counsel very much for their assistance in this matter. 

77MS SINGH:  Your Honour, apologies.  There are some ancillary orders that are sought.

78HER HONOUR:  Yes, there are too.  I saw those.  I have got them here. 
I apologise. 

79MS SINGH:  In relation to the sentence appeal, there's a forfeiture order and a disposal order.

80HER HONOUR:  I do not know if I have got those.  You can forward them further to my office, if you wish.  Is that only in relation to the appeal?

81MS SINGH:  There is also orders sought on the County Court matters.  Again, a disposal and a forfeiture order.

82HER HONOUR:  That is in relation to the plea and - no, I do not seem to have the ones for the appeal. 

83MS SINGH:  I do have a spare copy here, Your Honour, if that assists.

84HER HONOUR:  Thank you.  If you could sign those, yes. 

85There you are.

86MS SINGH:  Thank you, Your Honour.  I also just wanted to clarify for the avoidance of any doubt that Your Honour is not declaring any time served?

87HER HONOUR:  Well, no, I cannot.  Because I am not sentencing her to any ‑ ‑ ‑

88MS SINGH:  Understood.

89HER HONOUR:  Is that right?  I am only placing her on a community corrections order.  I do know if I am falling into error here, but I do not think it is possible for me to declare PSD unless there is - unless I have imposed a sentence, so there is no ‑ ‑ ‑

90MS SINGH:  Which you have not.

91HER HONOUR:  So that is ‑ ‑ ‑

92MS SINGH:  Understood. 

93HER HONOUR:  No, thank you very much, but I do not think I have to.

94MS SINGH:  Yes, understood.

95HER HONOUR:  Thanks, Madam Prosecutor.  All right, that is fine.

96Thank you, we will adjourn to - thank you.    

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