Director of Public Prosecutions v Kenyon

[2024] VCC 424

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01636 and CR-22-016367

DIRECTOR OF PUBLIC PROSECUTIONS

v

CURTIS KENYON

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	14 July 2023
DATE OF SENTENCE:	8 April 2024
CASE MAY BE CITED AS:	DPP v Kenyon
MEDIUM NEUTRAL CITATION:	[2024] VCC 424

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE

Catchwords:              Arson – criminal damage – burglary – firearm offences – dangerous driving while pursued by police – heavy drug use – significant rehabilitation – Teen Challenge participant – plea of guilty

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:R v Verdins [2007] VSCA 102; Sanyasi v The Queen (2019) 90 MVR 99; R v Martin (2007) 20 VR 14; R v Rees [2011] VSC 523; DPP v Arvanitidis [2008] VSCA 189, DPP v Francis [2016] VCC 1768; Worboyes v R [2021] VSCA 169; Boulton v The Queen [2014] VSCA 342; Akoka v The Queen [2017] VSCA 214

Sentence:                  Total effective sentence of 6 months and 14 days served by way of pre-sentence detention and a Community Correction Order for a period of two years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S. Tatas	Office of Public Prosecutions
For the Accused	Mr J. Mortley	Dribbin & Brown Criminal Lawyers

HER HONOUR:

1Curtis Kenyon, on 27 February 2023 you pleaded guilty on Indictment C2215097.1 at a directions hearing, to the following charges; Burglary; Arson; Intentionally damaging property; Dangerous driving while pursued by police; Being a prohibited person use a firearm; Using a firearm to discharge a shot; Being a prohibited person possessing a firearm; Being a prohibited person carrying an imitation firearm; and again being a prohibited person possessing an imitation firearm.

2On 14 July 2023, your plea hearing commenced before me. In addition to those charges, you consented to several summary related offences being dealt with  by this court and pleaded guilty to three related summary offences of commit an indictable offence whilst on bail, one related summary offence of contravene a family violence intervention order, and one related summary offence of possess ammunition without a licence.

3You also admitted a prior history totalling 13 pages.

Circumstances of offending

4The agreed factual basis of your offending was detailed in a summary of prosecution opening dated 3 July 2023.  This document was tendered and read out at your plea hearing and a summary is as follows.

5

Your offending involved two incidents.  In relation to the first incident, late in the evening on 2 November 2021, you attended a property at Flinders ('Flinders property').  You were in your blue Ford Falcon wagon which had false registration plates. This property is owned by Ms Hazard, a

91-year-old woman. She was not present on site at the time.  Mr Hart, the caretaker of the property, a friend Ms Holliday and her 6-year-old daughter were staying at the property at the time of your offending. The Flinders property is a large semi-rural property. It has several buildings that are close to each other, being the main house which the caretaker lives in, a two-storey cabin used by visiting family, a single storey cabin used by visiting family, a work shed attached to the carport, a further work shed and a large carport.

6You used bolt cutters to cut through two padlocks that secured a side gate and an internal gate to gain entry to the Flinders property. You drove to the rear of the two-storey cabin and again used bolt cutters to cut the gas pipe connected to the hot water system and the gas pipe connected to the hot water system on the single storey cabin, causing gas to pour out.

7You went inside the two-storey cabin and smashed several windows, a piano and various item of furniture. You left the bolt cutters in that cabin.

8Next you used a piece of wood that was nearby to smash four windows in the work shed adjoining the carport.  You then smashed one window on the other work shed and fed a hose connected to a large water tank into a sink, turned it on and emptied the tank.  You also emptied a water tank in the carport area.

9Ms Holliday woke when she heard loud banging and glass breaking.  She looked out the window and saw you wearing a motor bike helmet, a black long-sleeved jacket and a climbing harness. You were throwing things around erratically.

10

Your vehicle was parked in the main driveway with the headlights turned on and pointed towards the carport. Ms Holliday alerted Mr Hart, and then called

Triple 0 on the landline.

11You spread fuel from a red jerry can, which you had brought with you, around the carport area and poured it onto a boat.  You then located four or five gallon drums of hydraulic fuel that were kept in the carport and emptied them onto the ground.

12You took multiple distress signal flares from inside the boat, ignited them and threw them into the boat and carport area to ignite the fuel. This caused a large fire to start.

13Ms Holliday called Triple 0 for a second and then a third time to report the fire.  She was terrified for her own and her daughter's safety.

14In the meantime, you got back into your car and drove out the main driveway.  Your exit was blocked by the arrival of the Country Fire Authority. You turned your vehicle around, and left the way you had come in. The police arrived on scene and observed your vehicle accelerating away at a fast rate of speed, east along Boneo Road. They activated their lights and sirens, but you evaded them by travelling at speeds of up to 150 kilometres an hour.

15Despite the deployment of stop sticks by the police at Rosebud, you continued to evade police and parked your vehicle out the front of a house in Tootgarook before fleeing on foot.

16The next morning you contacted your then ex-girlfriend, Amanda Smaragdidis, who picked you up from Capel Sound and drove you back to her house in Tootgarook. Ms Smaragdidis believed you were coming down off methamphetamine.  You went to sleep and at one point you woke and stated that you had had a dream in which you had been to a house and lit a fire.  You could not recall if it was reality or a dream.

17Police photographed the crime scene at the Flinders property and seized a can of Dulux metal shield spray blue paint, a red jerry can that had some remnants of fuel and your DNA, empty cardboard packaging for a six pack of Corona beer, an empty can of Wild Turkey 101 bourbon, again with your DNA, and an empty flare packet from the main driveway.

18On 3 November 2021, a witness found your vehicle outside their property in Tootgarook. They looked in the window of the vehicle and observed a box of Corona beers on the passenger seat.

19On the same day, an arson chemist attended and assessed the Flinders property. The cause of the fire was determined to be ignition of combustible materials, namely fuel being poured and splashed around the carport, and likely ignited by flares being thrown into the area.

20On 10 November 2021, a trailer and a white Rip Curl singlet belonging to you were located near the side gate of the Flinders Property.  On 18 November 2021, police located a jemmy bar in the carport which had the same rainbow coloured wrap as your bolt cutters. On 23 November 2021, the climbing harness you wore during the offending was located at Ms Smaragdidis' house in Tootgarook.

21Insurers have assessed the damage to buildings as follows: hayshed - $80,398.36 and a workshop and shearing shed - $3,296.92. The value of the damaged contents is estimated as follows.  So a 4.5m steel hull boat with a 500 horsepower Mercury Motor - $17,000, a Thalberg Piano - $2,000, an LG Television - $895 and two Rinnai hot water systems, the replacement value being $3,000.

22Police made enquiries of the blue Ford Falcon's owner, Scott Lowther, who confirmed he had sold you the vehicle on 6 October 2021 for $500 and that you knew each other through work.

23Further evidence from your bank account transactions on 1 and 2 November and CCTV from various retailers revealed you had purchased blue Dulux metal shield spray paint, a 6-pack of Coronas, you had filled a jerry can with six litres of fuel and purchased an 8-pack of Wild Turkey 101 cans whilst wearing a white singlet.  A similar paint can, packaging from a Corona 6-pack, a red jerry can (with your DNA), a can of Wild Turkey (with your DNA) and a white singlet were all found at the Flinders property at around the time of the fire.

24In relation to the second incident, on 13 October 2021, an interim family violence intervention order, containing full non-contact conditions, was served on you as the respondent.  Ms Smaragdidis, Piper and Hudson Kenyon were listed as the affected family members.

25

On the evening of 12 November 2021, Ms Smaragdidis was alone at her home in Tootgarook when she received a phone call from Montana Hyland. She told

Ms Smaragdidis to 'stay inside and lock the doors'. You then got on the phone and told Ms Smaragdidis, 'go to your mother's house or call the police as a woman has threatened to get someone to come to the house'.  Whilst Ms Smaragdidis was getting ready to go to her mother's house, she received a text message from the same mobile number saying that 'Tyson' would be coming over.  A short time later, Tyson Podger arrived and said he had been told by you to come over to make sure she was okay.

26You and Ms Hyland then arrived at Ms Smaragdidis' house. You said that you needed money that you had previously left in the safe. You went inside the address and searched the safe. You were overheard to say that you owed approximately $3,000.  Ms Hyland replied, 'don't worry, I'll tell Mickey about the money'.

27Everyone went into the carport. Once in the carport, Ms Smaragdidis noticed you were in possession of a bulky, metal firearm and you were wearing a green army helmet. You told Ms Smaragdidis not to ask questions.

28

A short time later Nicholas Briscuso and Thomas Ryan drove past

Ms Smaragdidis' address to check on her safety.  Mr Briscuso drove his black Ford Ute.   He observed Montana Hyland's vehicle parked in the driveway and saw three or four people standing in the carport of the address. Mr Briscuso was concerned for the safety of Ms Smaragdidis so he completed a U-turn and pulled up on the nature strip outside her address.

29Ms Smaragdidis observed the black Ute drive down her street.  Ms Hyland pushed her back into the house. Ms Smaragdidis told Ms Hyland that she believed the vehicle was her cousin, Mr Briscuso's, vehicle.  Ms Hyland replied 'no, it's Matt's'.

30You then ran towards Mr Briscuso's vehicle and shot the gun.  The gunshot hit the front side of the vehicle.

31Mr Briscuso heard a loud bang that sounded like a gunshot and immediately drove away from the address. Once a safe distance from the address, Mr Briscuso pulled over and inspected his vehicle.  He observed a large circle of white powder on the vehicle's front guard, which included a dent and multiple chips.

32

Ms Smaragdidis heard a gunshot and went back outside to the carport. You had left the address. Ms Smaragdidis saw Ms Hyland and Mr Podger get into

Ms Hyland's vehicle and leave the area.

33Mr Briscuso's vehicle was seized and secured at the Rosebud police station where it was examined. The vehicle had damage to the front guard which is consistent with damage from a shotgun gunshot. The cost to repair the vehicle was $2,581.96.

34The police attended the address and located wadding from a shotgun cartridge as well as a green army helmet.

35On 13 November 2021, you were identified exiting a taxi on Point Nepean Road, Rosebud. You were arrested by members of the Special Operations Group.

36You were searched and police located a loaded imitation handgun in the front of your pants. A search was conducted of the taxi you ran from which located: a loaded single barrel shotgun and an imitation handgun and ammunition including a spent shotgun cartridge.

37When arrested you were also in possession of an Oppo mobile phone which was seized by investigators.  A review of the mobile phone found an incoming message was received by you at 10.59 am on 13 November 2021 from 'Harley Wombat Murphy'.  Murphy stated, 'You letting off rounds last night were ya, aha'.  You replied 'Yeah'.

38You attempted to flee from the SOG members, you were run over in the course of your arrest and sustained injuries. As a result you were transported to The Alfred Hospital for treatment. On 14 November 2021 you were released from hospital and transported to Melbourne West police station where you were deemed unfit to interview.

39On 15 October 2021, you had been bailed from Rosebud police station to attend Dromana Magistrates' Court on 10 March 2022. You were therefore on bail at the time of Incidents 1 and 2, and at the time of your arrest.

40On 22 February 2022, you participated in a record of interview at Fulham Prison. You responded 'no comment' in relation to most of the allegations, however, you did make some limited admissions.

Victim impact statements

41The court received victim impact statements from Nicholas Briscuso, Thomas Ryan, and Ms Hazard, the latter being read out aloud by the prosecutor in Court.

42Ms Hazard is the 91-year-old owner of the Flinders property. Her victim impact statement was written on behalf of herself and her family.

43Ms Hazard spoke of the massive financial damage to the property, which was assessed at $106,599. This has required a major effort to restore the property to its former state, which had a substantial impact on the operation of the farm whilst repairs were completed.  Further, Ms Hazard spoke of the loss of an uninsured boat which has robbed her son-in-law of his fishing leisure activity.

44The emotional impact has been profound.  Ms Hazard described this as follows:

'For all of us, the sense of safety in this peaceful rural setting has been seriously eroded.   We have been left feeling fearful, violated and shocked that anyone would wilfully target our property to commit such a senseless crime.  There is a constant concern that despite the installation of security monitoring equipment, something similar could happen again. The family is left fearful and violated by your offending, concerned something could happen again and from my own point of view, I have been overwhelmed by the gravity of this attack on our property.  I do not stay there anymore.'   

45She has been left with the unanswered question as to what motivated you to offend in this way.

46Mr Ryan and Mr Briscuso were in the vehicle that you shot at, and both spoke of the fear they now suffer in any social gatherings.  This has cost them relationships with friends and family.  A direct result of your offending is that both Mr Ryan and Mr Briscuso have difficulties at work, and both suffer from anxiety and stress.

47Further, Mr Ryan and Mr Briscuso have felt the effects of your offending financially, as they moved house, installed security cameras, and had to pay an increase on the insurance premium for the car.

48You left a trail of disaster behind you and innocent people have suffered significantly as a result.  I have taken into account the impact of your offending on each of your victims and will reflect that in the sentence I impose today.

Personal circumstances

49You were born in January 1994, and you are currently 30 years old.  You were 27 at the time of the offending. You grew up in Blairgowrie, with three older brothers, none of whom have had any issues with the law.

50You maintained a good relationship with your parents when you were growing up, but not surprisingly this relationship became strained as you engaged in drug use.

51Your parents were heavy cigarette smokers, only quitting when they experienced significant health difficulties, your mother suffering a stroke that left her in a wheelchair, and your father two heart attacks. Your parents also suffered financially as a result of their gambling addictions and at the time you blamed yourself for their financial problems.  Notwithstanding these issues, you enjoyed a supportive and loving childhood.

52You attended secondary school at Padua College in Rosebud. You had issues with bullying in Years 5 and 6, which led you to develop an eating disorder for about a year and caused you low mood and depression.  At times you struggled with authority figures and would misbehave in class and at other times you truanted from school.

53Despite these issues, you had a strong work ethic and commenced your working life by stacking shelves at a local IGA supermarket when you were aged 15 years. At around this age you began to binge drink at beach parties on weekends and during Years 11 and 12 you were employed at a local café waiting tables.

54In terms of extracurricular activities, you played football at Sorrento when younger, and skateboarded under a Trigger Brothers sponsorship. It was whilst skateboarding at around age 17 that you met peers who introduced you to cannabis use.  Also around this time you began attending clubs and consuming and dealing in MDMA.

55You successfully completed VCE, graduating from Padua College in Rosebud. During Year 12 you commenced a chef's apprenticeship and Certificate III in Hospitality.  By the end of Year 12, you had begun to smoke amphetamine on weekends whilst clubbing and attending parties. You continued to work in hospitality. On one occasion, in an attempt to buy amphetamine, you were introduced to the use of methamphetamine. From this point your use of methamphetamine began and increased until you began to use daily.

56At the age of 19 and a half, you completed your apprenticeship.  Around this time you were sentenced to your first community correction order for trafficking in MDMA.

57At around the age of 20, you met and commenced a relationship with Amanda Smaragdidis.  At that time you both worked in the hospitality industry.  Despite her non-approval of your drug use and your failed attempts to desist, your relationship has endured, albeit on and off at times.  In 2016, you and Ms Smaragdidis had your first child, and later in 2018 a second child,, was born.  In 2020, shortly after your arrival at Teen Challenge, your daughter,  was born.

58In September 2018, when you were aged 24, you were sentenced to your first term of imprisonment.  You were ordered to serve three months for a charge of reckless conduct endangering serious injury and other charges. Despite your repeated attempts to rehabilitate, you were unable to make a sustained change.  By the age of 25 your drug use had become so problematic that you were unable to maintain steady employment.

59

In September 2019 you were remanded in custody and went on to spend over

12 months in gaol.  You were ultimately sentenced to a combination sentence of one year and 14 days and a six-month therapeutic community correction order.  During this sentence, your relationship with Ms Smaragdidis broke down.  However, after your release and a period of sobriety, you reunited.

60You gained employment working as an arborist.  Later you became self-employed and sub-contracted in this field.  After approximately one year without drug use, in August 2021, you relapsed and used cocaine. Soon you were using cocaine regularly and within a short period of time you had returned to daily methamphetamine use.

61In the months prior to the offending, you were using significant amounts of methamphetamine daily and would be awake for two to three weeks at a time, only getting sleep when you physically collapsed.  Your drug use led to a breakdown of your family unit, and an unsuccessful suicide attempt.

62

In the lead up to your offending, you were consuming methamphetamine, alcohol, and LSD in large quantities.  Ms Smaragdidis had again quit the relationship and refused to allow you to see the children, given your presentation and behaviour.  In this context, you had spiralled out of control. In a psychological report co-authored by forensic psychologist, Ms Pamela Matthews, and psychologist,

Ms Daria Sizenko, the authors opined that you would have met the criteria for substance-Induced psychotic disorder with onset during intoxication at the time of your offending.

63

In relation to the arson offending at the Flinders property, your counsel submitted that you had no real memory of the offending, that there was no logical motive or malice directed at any individual, that you had a dream where you recalled flashes of fire and being hunted as though you were in a video game watching yourself, and you recalled hearing God, and you came to in a field and contacted

Ms Smaragdidis, and related to her details of your dream of lighting a fire.

64In relation to the firearm offences, you consider that you were delusional and that you were protecting Ms Smaragdidis from armed offenders, by firing a warning shot at a vehicle that had approached her home. After this offending, you came to rolled up in a carpet, hiding under a house.

Nature and gravity of offending

65As conceded by your counsel, Mr Mortley, your offending is constituted by two very serious incidents.  These incidents occurred over three days, on 2 and 3 November and 13 November 2021. Each of these incidents had the potential to be life threatening.  Arson involves fire, which is dangerous and unpredictable. This was coupled with your evasion of police by driving at high speed. Then, 10 days later, you discharged a firearm into an occupied vehicle in a built-up and populated area.  Further, both offending incidents occurred when you were in a grossly intoxicated state.  It was only good fortune that no-one was seriously hurt.

66The arson offending occurred at night on an isolated rural property. Whilst at the property, you emptied water tanks that could have been used in a firefighting effort. Further, you spread fuel as an accelerant, and not only did you use fuel sources found at the property, by cutting gas lines, but you brought your own jerry can filled with petrol to use in the arson attack. This shows a degree of planning on your part.

67The potential for significant damage was high, given the close proximity of buildings on the property. This included one building that was occupied by three people at the time, who were in fear of their lives. The property damage caused by your offending was in excess of $100,000.

68I agree with the prosecution submission that this is a serious example of arson.

69

To evade police you drove, whilst severely drug affected, over speeds of

100 kilometres an hour, ultimately evading police on foot.

70The latter incident involving your possession and use of a gun was also very serious given you were in breach of an intervention order at the time, and you were a prohibited person who should not have had possession of a firearm. You fired the gun at a vehicle occupied by two people in a suburban street. Further, upon your arrest, you had possession of two imitation firearms, one was loaded and in your pants. The other two were in a bag that was with you in a taxi in which you were travelling. The sawn-off shotgun and the other imitation firearm were both loaded. There could be no legitimate reason for you to be armed in this way.

Verdins

71

Your counsel, Mr Mortley, submitted that the principles in Verdins were enlivened in your case.[1] To support this submission he relied upon the psychological report dated 20 February 2022 authored by psychologists, Ms Pamela Matthews and

Ms Daria Sizenko.

[1] R v Verdins [2007] VSCA 102.

72The opinion of Ms Matthews and Ms Sizenko was that;

At the time of the offending [you] would have further met the criteria for substance induced psychotic disorder with onset during intoxication with [you] experiencing delusions of persecution, visual and auditory hallucinations.  Such occurred as a result of methamphetamine intoxication with the substance being capable of producing symptoms of psychosis.  As [you] did not have such symptoms of psychosis prior to methamphetamine use and the symptoms have subsided since, [you] no longer use the substance. [Your] presentation is not likely to be better explained by another psychotic disorder.

It is likely that the substance induced psychotic disorder use would have played a significant role in [your] offending behaviour with [you] in part acting in response to [your] delusions and hallucinations. Alongside symptoms of psychosis, methamphetamine intoxication would have contributed to difficulties with emotional and behavioural regulation.

Although substance use has been a significant contributor to [your] current and past offending behaviour [your] drug use was likely precipitated by unresolved mental health issues such as childhood abuse, depression, anxiety and disordered eating.

73Additionally, Mr Mortley relied upon your viva voce evidence that your only memory of the arson offending was a nightmare where you had felt a flash of warmth from fire and that you had felt like a puppet on the end of a stick and that you had no control over yourself or your brain. Further, as to your report of seeing monsters and being part of a video game, that was a reference to a criminal thing and that you had never felt illusions of such intensity before. That you were out of control and had not experienced something so scary before, it was like being in the passenger seat of your own body.

74Mr Mortley referred to the case of R v Martin and submitted that although you self-administered the drugs that led to your psychosis, you did not know that would result in the psychotic reaction that in fact occurred, nor the type of offending in which you engaged.[2] Mr Mortley conceded that given your history, you should have been aware that criminal offending of some sort could have resulted from the ingestion of substances.  He submitted that general and specific deterrence ought be moderated and not eliminated.

[2] R v Martin (2007) 20 VR 14.

75Ms Tatas on behalf of the prosecution submitted that the key issue was that you knew about the possible consequences of taking the relevant substance and that your culpability is unlikely to be reduced where you have a history of using substances known to lead to hallucinations and violence.[3]  In your case, Ms Tatas submitted it was clear that you had such foreknowledge, as evidenced in the psychological report at page 6 where [you] reported previously seeing monsters, perceiving [yourself] as being part of a combat video game or movie, and hearing noises and muffled voices when under the influence of methamphetamine.

[3] Sanyasi v The Queen (2019) 90 MVR 99; R v Martin (2007) 20 VR 14; R v Rees [2011] VSC 523.

76In addition, Ms Tatas relied upon your responses in cross-examination. That is, you had used methamphetamine since Year 12, that you had experienced ice benders in the past, you lost your job at 25 and you were remanded in September 2019 in circumstances where you were drug affected.  Consequently, by that time, you were very aware of the effects of ice.   Ultimately, Ms Tatas contended that Verdins does not apply in your case.

77The critical question for the court to consider is 'what the probable consequences of ingestion of the particular drug of the particular offender were and whether the offender foresaw those consequences'.[4] It is not enough for the offender to establish he had no foreknowledge that the psychotic symptoms would cause him to behave in the precise manner in which he offended or would cause him to be generally dangerous or violent. If the offender was aware that by taking the drug, his judgment would be so affected that he would behave irrationally, or that it would affect his ability to exercise control, his self-induced mental state would not constitute a mitigating circumstance. So, an offender's foreknowledge regarding the potential for paranoia, persecutory delusions, and other forms of disorganised thought, can be sufficient to preclude the operation of the principles stated in Verdins.[5]

In my view, there is evidence in your case that supports the conclusion that you had foreknowledge that your drug use would likely cause you to experience psychotic symptoms such that your ability to exercise self-control would be eroded and you would likely behave irrationally. Such evidence was contained in the psychological report and referred to by Ms Tatas in her submissions. In addition, in providing their positive opinion that you met the diagnostic criteria for severe stimulant use disorder, Ms Matthews and Ms Sizenko opined that your drug use continued despite Mr Kenyon acknowledging that his symptoms of psychosis worsen when he is under the influence of methamphetamine.

[4] R v Martin (2007) 20 VR 14.

[5] DPP v Arvanitidis [2008] VSCA 189, DPP v Francis [2016] VCC 1768.

78In the circumstances I am not satisfied on balance that the principles enunciated in Verdins have application in your case.

Rehabilitation

79In my view the most prominent mitigating factor raised by your counsel was your rehabilitation. It is not often the Court sees such exceptional evidence of rehabilitation.

80You were arrested for these offences on 13 November 2022 and spent the next 199 days in custody. On 31 May 2022, you were released on bail with a special condition to reside at Teen Challenge residential rehabilitation centre. At the time of your plea hearing on 14 July 2023 you had been at Teen Challenge for
409 days. You gave evidence before me, as did Richard Storer, a representative from Teen Challenge.

81Mr Storer explained the substantial progress you had made at Teen Challenge, which has resulted in you being offered the position of Servant Leader, a role which required further training. Mr Storer told the court that this is not offered to all participants of Teen Challenge, but you are seen as a role model and leader for others. The Servant Leader training would also involve you gaining qualifications as an alcohol and other drug worker, a long-term goal you hold.

82Further, a letter was tendered from Mr Ben Watson who is the Program Director of Teen Challenge. Mr Watson apologised for not being able to support you in court. He described that you had applied yourself diligently in the Teen Challenge program and that you had shown tremendous remorse for not only what you had done to friends and family, but for the trouble and damage you had caused the community. In the 13 months you had been at Teen Challenge, to his observation you had become a leader within the Teen Challenge community and were a good example and positive influence on other program participants. Further, he spoke of your attendance at Community Outreach Programs and your passion to assist others on their journey to recovery.

83Ms Smaragdidis also wrote a testimonial where she described the significant and positive changes you had made, from a selfish, destructive, absent parent who was a complete mess, to someone who has spiritually, mentally and emotionally reformed and who is now present as a partner and father.

84I was impressed by your evidence. Importantly you apologised to those you had harmed. You also explained how the program had allowed you to reconcile with Ms Smaragdidis and your children. Your family unit is now back together, and while they do not live with you at Teen Challenge, you spend time with them often. You described a deep understanding of the program and your passion and commitment to change.

85Notwithstanding that you had spent 409 days at Teen Challenge as at that time, the seriousness of your offending was extremely concerning. I deferred your sentence to allow more time to assess your prospects for rehabilitation and to allow you more time to demonstrate actual reformation.

86On 28 February 2024, you again appeared before me.  Not only had you completed the Teen Challenge Program, but you had committed to stay with the program for a further 12 months as an unpaid intern, serving as a leader supporting participants in the program with their recovery and also by attending community outreach programs. In addition, you are enrolled and have commenced study towards a Certificate IV in Alcohol and Other Drugs and Community Services.

87I received a further letter from the Program Director, Ben Watson, and a letter from the Teen Challenge chaplain and mentor, Jim Stevens. Both men spoke of you as a young man with so much potential to positively influence many around you. In addition, three negative drug screen results were tendered.

88I take into account that you have now spent 678 days, that is 22 months and eight days, at Teen Challenge inpatient rehabilitation program. This time has necessarily involved restrictive and punitive aspects, in addition to its rehabilitative focus. I recognise that more recently, you have enjoyed greater freedoms within the program, but in my view you should still get some benefit for your continued time at Teen Challenge.

89Although this time does not represent or equate with pre-sentence detention, in my view it is time that should be taken into account as part of the instinctive synthesis of sentencing and also as a means to encourage others in your position to participate in such programs. I give full weight to this for the period you were participating in the program, and I give some weight to this principle given you remain at Teen Challenge in your role as an unpaid intern and student.

Plea of guilty

90In addition, I take into account that you have pleaded guilty. While it cannot be said your plea was an early one, it is a plea of guilty to two separate matters that were able to be dealt with in the one plea hearing.

91Your plea has significant utilitarian benefits in recognition of court time and resources saved, as well as sparing witnesses from cross-examination at trial. Further, and importantly, it is an indication of your willingness to facilitate the course of justice and is evidence of an acceptance of responsibility for your offending and evidence of your remorse.

92Although the backlog of cases caused by the pandemic has now substantially eased, I consider the resolution of your matter falls within the timeframe when the additional benefit to be gained for a plea of guilty as recognised by the Court of Appeal in the case of Worboyes, still had some application.[6]

[6] Worboyes v R [2021] VSCA 169.

93Accordingly, I have given you an appropriate discount for your plea of guilty.

Sentencing principles

94The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.

95Given the seriousness of your offending, general deterrence is a prominent sentencing factor.  In my view the sentencing factors of general deterrence, just punishment and denunciation, can be addressed by the imposition of a combination penalty of incarceration and a community correction order.  In coming to this conclusion, I am mindful of the guidance given by the Court of Appeal in Boulton v The Queen.[7]

[7] Boulton v The Queen [2014] VSCA 342.

96In light of your very difficult time served in custody on remand when you were injured, isolated and suicidal, together with your remorse and reformation, I consider the weight to be given to specific deterrence should be moderated.

97Although protection of the community remains a relevant consideration, in my view this is best achieved by your continued rehabilitation.  I consider the evidence of rehabilitation in your case to be exceptional.  Not only have you reformed yourself, but you have had a positive influence on others who have succumbed to the scourge of addiction.  In this way, you are giving back to the community in a very valuable way.

98I take into account the sentencing guidelines referred to in s5 of the Sentencing Act,[8] where relevant to your case. In particular, I have had regard to the sentencing landscape for the offences of arson and firearms offences.  Ultimately, the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case. In doing so, I have had regard to the significant concession by the prosecution that a term of imprisonment imposed by way of head sentence or combination sentence or deferral is open to the court given your substantial efforts toward rehabilitation. I have also had regard to the period of time you have spent at Teen Challenge in accordance with the case of Akoka.[9]

[8] Sentencing Act 1991 (Vic) s 5.

[9] Akoka v The Queen [2017] VSCA 214.

99The principles of totality, proportionality and parsimony are also very important considerations. They require me to make sure that I impose an appropriate sentence in line with the total criminality and gravity of your offending and that I do no more than is necessary to punish you.  I have taken these principles into account in fixing the length and structure of the sentence I will now impose.

100On 28 February 2024, I ordered a pre-sentence report to assess your suitability for a community correction order. You have been assessed by Corrections and they have determined you are a suitable candidate for a such an order.

101Mr Kenyon, could you please stand. In relation to each of the charges before the court, that includes the charges on the indictment and the summary related offences, you are convicted, and I order:

102In relation to Charge 1 of burglary, that you serve one month imprisonment.

103In relation to Charge 2 of arson, four months' imprisonment and a community correction order for two years.

104Charge 3, criminal damage, one month imprisonment.

105Charge 4, dangerous driving in a police pursuit, one month imprisonment.

106Charge 5, prohibited person use a firearm, 90 days and a community correction order for two years.

107Charge 6, discharge a firearm in a public place with reckless disregard for safety of a person, four months' imprisonment and a community correction order for two years.

108Charge 7, prohibited person possess firearm, two months' imprisonment and a community correction order for two years.

109Charge 8, prohibited person possess an imitation firearm, two months' imprisonment and a community correction order for two years,

110Charge 9, prohibited person possess an imitation firearm, two months' imprisonment and a community correction order for two years.

111In relation to the summary related offences, Charge 8, which is commit indictable offence on bail, 14 days' imprisonment.

112Charge 6, which is also commit indictable offence on bail, 14 days' imprisonment.

113Charge 7, which is contravene family violence interim intervention order, one month imprisonment.

114Charge 12, commit indictable offence on bail, 14 days' imprisonment.

115Charge 13, possess ammunition, I have convicted and discharged you.

116So Charge 2 of arson, is the base sentence and I order that 14 days of the sentence on Charge 5 and two months of the sentence on Charge 6, be served cumulatively.

117So that should come to a total of six months and 14 days' imprisonment.  I declare that you have served 200 days as pre-sentence detention.

118The conditions of the community correction order include that you must:

a)Attend for supervision;

b)That you perform 300 hours of unpaid community work;

c)That you submit for assessment and treatment for drug abuse;

d)That you submit for assessment for programs to reduce re-offending. 

e)I am also going to order a condition for judicial monitoring.

119I want you to come back and see me in about six months' time. I have done this because I am really interested to see how you go and to see whether or not you can maintain the rehabilitation that you have commenced.  I am pretty confident that you will be able to.

120The judicial monitoring can be done via Webex and if necessary you can appear at the Corrections Office with your corrections officer, that is usually what happens and the date that I propose for this is 7 October 2024 at 10 am.

121In relation to the 300 hours of unpaid community work I will offset 100 hours of this condition with hours accrued during rehabilitative programs.

122In addition to the conditions that I have imposed, there are standard conditions you must comply with. First and foremost, you must not commit an offence punishable by imprisonment over the next two years. If you do, you will breach the order. You must also comply with conditions I have imposed and the standard conditions of the CCO. If you do not comply, you will breach the order. If you breach the order, you will be brought back before me, and I will likely have to re-sentence you. That could involve sending you back to gaol. 

123You are required to advise your supervising corrections office of any change of address where you are living or working within two clear working days, and it is a term of all community correction orders that you must submit to visits as directed and obey the instructions and directions of Community Corrections and you cannot leave the State of Victoria without prior permission.

124You need to report within two working days to your nearest Corrections Office and that will be Shepparton Community Corrections Services and you must report there by 4 pm on Wednesday 10 April 2024. 

125So I can only place you on a community correction order if you agree. So, firstly, do you understand what is involved?

126OFFENDER:   Yes, Your Honour.

127HER HONOUR:  And do you agree to doing such an order?

128OFFENDER:  Yes, Your Honour.

129HER HONOUR: Okay. Pursuant to s6AAA of the Sentencing Act,[10] if you had pleaded not guilty and been found guilty, the sentence I would have imposed is a term of two years' imprisonment with a 13-month non-parole period.

[10] Sentencing Act 1991 (Vic) s 6AAA.

130I intend to make the two disposal applications that have been sought by the prosecution and also the application for compensation, which I am pleased to know is not disputed and is consented to. I will make those orders as well. Is there anything further?

131I am not sure how many of the victims are present, but can I just convey my gratitude for you being involved in the process.  I hope that it has been helpful in healing, and I hope that now that the matter is over, that from this point of view it can be put behind  those that have been affected by it to some degree.  I do not imagine that it will be something that is easily forgotten, and I just reassure people that I have taken into account the terrible impact that it has had.  Can I thank counsel very much for the very thorough submissions that they made.  They were of great assistance, and Mr Kenyon I wish you the best with your continued rehabilitation  it truly has been quite exceptional in my view.  So, well done and yes, I hope that you can continue on and continue to help others in the community, particularly the work that you are doing going into schools and supporting others.  It is really valuable and I consider it is in everyone's interest if you continue to spread that word.  Well done.

132OFFENDER:  Thank you, Your Honour.

133HER HONOUR:  All right, we will adjourn.

134MS TATAS:  As the court pleases.

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