Director of Public Prosecutions v Kernaghan

[2021] VCC 1269

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-21-01039

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICHARD KERNAGHAN

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2021
DATE OF SENTENCE:	14 September 2021
CASE MAY BE CITED AS:	DPP v KERNAGHAN
MEDIUM NEUTRAL CITATION:	[2021] VCC 1269

REASONS FOR SENTENCE
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Subject:CRIMINAL

Catchwords:          Plea of guilty – one charge aggravated burglary – one charge damaging property – one charge causing injury recklessly – related summary offence of committing an indictable offence whilst on bail – circumstances of covid-19 pandemic

Legislation Cited:         Bail Act 1977 (Vic) ; Crimes Act 1958 (Vic) ; Sentencing Act 1991 (Vic)

Cases Cited:DPP v Meyers (2014) 44 VR 486; Hogarth v The Queen 37 VR 658; Mills [1998] 4 VR 235; Worboyes v The Queen [2021] VSCA 169

Sentence:  Total effective sentence of three years and three months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms N. Burnett	Office of Public Prosecutions
For the Accused	Mr T. Fitzpatrick	Clancy Solicitors

HER HONOUR:

Introduction

Plea of guilty and maximum penalties

1Richard Kernaghan, you have pleaded guilty to one charge of aggravated burglary, which carries a maximum penalty of 25 years imprisonment. You have also pleaded guilty to one charge of damaging property, which has a maximum penalty of 10 years’ imprisonment, and to one charge of causing injury recklessly, which has a maximum penalty of 5 years’ imprisonment.

2You have also pleaded guilty to the related summary offence of committing an indictable offence whilst on bail, which carries a maximum penalty of 3 months imprisonment or 30 penalty units. 

Circumstances of offending

3The circumstances of your offending are set out in the Summary of Prosecution Opening dated 12 August 2021. This became Exhibit A on the Plea. That document forms part of and is attached to these reasons.  I will not repeat it but summarise parts of it here.

Charge 1: Aggravated burglary

4On 24 November 2020 you and your co-accused Mr Dunbar were drinking together and walking in Cobram.  You both had a previous association with the Wilson family who lived in the area. Mr Dunbar had bought a dog from one of the family and at one time you had briefly lived in that family’s house. You both became angry when talking about the rumours you believed the Wilson family were spreading about you.

5At about 7pm Mr Stephen Wilson, then aged 38, was at home with his father Kevin,  his children aged 16 and 14 years, and one of their girlfriends aged 17 years. You arrived with Mr Dunbar and yelled out for Stephen Wilson to open the door. You told him if he didn’t open the door you planned to go in through a window with a bar.

6Mr Wilson did not respond; you then climbed in through a bedroom window with a tyre iron in your hand. You were yelling. This constitutes Charge 1: Aggravated burglary.

Charge 2: Damaging property

7Meanwhile your co-accused Mr Dunbar tried to open the front door to the house.  Once you were inside you went and unlocked it so he could come in too.

8Mr Stephen Wilson went into his father’s bedroom and held the door closed; you and Mr Dunbar banged on the bedroom door and started kicking it. A foot went through the door, causing Mr Stephen Wilson to step back and the door to fly open. This constitutes Charge 2: Criminal damage.

Charge 3: Causing injury recklessly

9You and Mr Dunbar went into the bedroom. Mr Kevin Wilson, who was 64 at the time, picked up some garden shears from the bedroom floor and told you both to leave.

10Mr Dunbar took the shears and pushed Mr Kevin Wilson against the wall and threatened to come back with a handgun to shoot him and to slit his throat with the shears.

11You meanwhile had found a yellow plastic cricket bat somewhere in the house and, while in the bedroom, you swung this bat at Mr Stephen Wilson’s head; he ducked to avoid it.

12There was a scuffle, you took hold of Mr Stephen Wilson, while your co-accused Mr Dunbar took the cricket bat and swung it at him, hitting him in the mouth.

13Mr Stephen Wilson pushed you both out of the house; his father called emergency services. You were throwing punches at Mr Stephen Wilson, but it is unknown if they landed.

14Outside the house your co-accused hit Stephen Wilson to the head with the cricket bat, causing a cut to the top left side of his head. (This, along with the punches described earlier gives rise to Charge 3: recklessly causing injury).

15You and your co-accused left the scene before Police arrived.

16An ambulance arrived and provided treatment to Mr Kevin Wilson who had a cut on his arm and was in shock.

Summary charge 12: Commit indictable offence whilst on bail

17On 24 November 2020, when this offending took place, you were subject to four separate counts of bail to return to Court on 14 December 2020 and 10 February 2021 respectively. This gives rise to the summary offence of committing an indictable offence while on bail.

Arrest, Interview and Chronology

18The following day, on 25 November 2020, you were arrested and taken to the Cobram Police station where you were interviewed.

19You made a series of admissions. You told police that you were ‘pissed off’ and ‘over it’ and went down to talk to Mr Wilson about it again and he wouldn’t come outside. You admitted to hitting Mr Stephen Wilson while outside maybe twice and that you’d caused his lip to bleed and might’ve made his nose bleed. You said ‘I’ve been pretty good with controlling my anger lately, but I snapped.’

20You were charged and remanded the same day.  

21On 6 April 2021 you gave an indication you would plead guilty to these matters, and the matter resolved when a guilty plea was entered at a committal mention on 18 May 2021.

Personal circumstances

22You are now 21 years old.

23You grew up in the Finaly area of NSW where you attended primary and secondary school.

24You were miserable at school. You struggled with your work and were picked on by your colleagues. You were diagnosed with depression and ADHD. You left school at year eight level, though completed up to year 11 by distance learning.

25You are the second eldest of four siblings. Your parents separated when you were eight years old. This event split the family. You stayed with your father and brother and sisters. Your mother moved to Tasmania.

26In December 2016 your life took a downward spiral when your father was killed  in a bailing accident on the farm. From this time, your drug use began and then escalated.

27You are estranged from your mother, older brother and stepmother. You do maintain daily contact by phone with your grandmother, who cares for your youngest sister.

28At the time of this offending you had no fixed address. 

29You have used cannabis, methamphetamine and GHB since 2016.

30You are currently taking 100mg of Prestiq to manage your anxiety and depression.

31While in custody you were working in the kitchen at Port Phillip prison; you were transferred to the Hopkins Correctional Centre, apparently after some threats against your safety at the other prison.

32You have also completed courses in OHS, Literacy and English, and Food handling.

33You hope to train as a shearer on your release from custody and intend to look for work in that area. You remain close with your grandmother and she still lives on the family farm. It’s your ambition to return there.

Nature and gravity of the offending

34The seriousness of the offence of aggravated burglary is indicated by the 25 year maximum penalty that is attached to it by Parliament.  Assessing the gravity of your offending requires me to refer to the matters in cases such as Meyers[1] and Hogarth[2]; where does your offending fit in the realm of factors set out in those cases?

[1] DPP v Meyers (2014) 44 VR 486

[2] Hogarth v The Queen 37 VR 658

35First, I note you allowed yourself to become angry about some perceived offence you had been caused by the Wilson family. There had been some kind of confrontation at a McDonald’s earlier that day. However, some hours later, you allowed that anger to be converted into a feeling of entitlement to go and impose yourself on this family while they were at home and while several children were present. You entered in an angry and violent frame of mind. You made verbal threats. You carried a tyre lever. While in the house you commenced an assault on Mr Stephen Wilson and continued that assault outside the house. He was injured. This was a confrontational aggravated burglary fuelled by alcohol, and self generated outrage.  

36I make it clear that I do not sentence you, other than for the matters specifically giving rise to charges two and three: criminal damage and recklessly causing injury, for the other assaults that took place inside the house given that the aggravated burglary was technically complete by that time. However I take the circumstances more generally into account in my assessment of the gravity of your offending.

37I’m obliged to place your offending somewhere on the spectrum of aggravated burglary. I find it a relatively grave version of the offence, by reason of the fact you were in company, carried a weapon of sorts (picked up while you were at the house) and where there were children in the house.  Once inside the house you pursued the confrontation further into one of the bedrooms.

Victim Impact

38The victims of your offending were notified of their right to make a victim impact statement; they chose not to exercise this right. I think I can confidently sentence you on the basis that this was a terrifying and sustained attack inside the Wilson family home. There were young people present. No doubt their sense of safety and security was fundamentally damaged by what you did.

Criminal Record

39You have admitted your prior criminal history (Victoria and New South Wales). Your history commences in 2015 with an appearance in the Albury Children’s Court. That case apparently occurred in the context of a relationship you were then in with a woman who was older than you. Your next appearances are also the Children’s Court in 2017 and 2018 for what appear to be assaults in domestic context. You have just one appearance in adult court in Shepparton in February 2020 - you got a Corrections Order of 12 months for a range of burglaries and thefts. That order was operational at the time this offending, in November of the same year.

40You were on four separate counts of bail at the time of these offences.

41At the time of your plea you had spent 289 days in custody. But for a one month period in 2016 in juvenile detention and some overnight remands, this is your first time in custody.  You are a very young person who has served his term in adult jail. I understand you have been transferred to the Hopkins Unit for your protection. I’m optimistic that this has been a salutary experience, hopefully one you’ll seek to avoid in future.

42I’ve taken into account your history. This is only your second appearance in adult court, but the gravity of the offending is significantly higher than anything that brought you to court before. This is the wrong trajectory for you.

Matters in mitigation

Plea of guilty

43I turn now to some matters in mitigation. First your plea of guilty. It was considered by the prosecution that you entered a plea at an early stage. The offending took place in November 2020, but by April of the next year you’d made an offer to plead guilty. That is a very significant matter in your favour; you have saved the community financial and human costs of the trial.

44You made admissions to police shortly after these events - those admissions that were basically consistent with the objectively established facts. It’s helpful, and counts in your favour, that you didn’t seek to deny or minimise what you did.

45Moreover, at a time when the court system is much burdened by the backlog of cases that occurred as a result of the COVID-19 pandemic your plea of guilty has a particularly special significance. The discount you receive for pleading guilty at this time should be palpable. It should communicate to other people the very significant benefits of pleading guilty at this time. To be clear, but for this feature at this time, the sentence I would have imposed would be significantly different, and much higher.[3]

[3]Worboyes v R [2021] VSCA 169

Youth

46You had just turned 21 years old at the time of the offending and you are to be sentenced before you turn 22. Your youth means that the paramount role for this sentence is your rehabilitation. The prosecutor argued that the seriousness of your offending displaced the principles that attach to youthful offenders. While your offending was very concerning, I don’t accept that argument. The community has a long-term stake in your not reoffending.

Prospects of rehabilitation and remorse

47I must assess your prospects of rehabilitation. You have expressed a desire to leave behind the drug use of the last five years. You wish to train as a shearer and return to work on the family farm. You maintain a good relationship with your grandmother (you have daily phone contact with her) and some other family members, though some are estranged from you.

48To rehabilitate you will need to learn that there is no such thing as ‘snapping’, (which is what you said to police). What you describe as ‘snapping’ is really just granting yourself righteous permission to violently interfere with the rights of others. On your plea, you read a letter which was articulate and acknowledged the harmfulness of your conduct, not only to the Wilson family, but to the broader community who were frightened by what you did. The contents of that letter are encouraging; you can show insight into the effect of what you did on others. You are capable of remorse, and I find you do feel remorse for what you did.

49I also find that your plea of guilty contains within it an aspect of remorse. You’ve blamed yourself. You’ve accepted responsibility.

50You maintain family connections, have a realistic ambition about employment and are planning for where you want to live. If you can gain insight into your drug use and your anger I find your rehabilitative prospects are good.

Remorse

Relevant sentencing principles

51I am obliged to sentence you in a way that deters other people from behaving in similar ways. Moreover, you must be punished for what you did. Through me and this sentence the community denounces your offending behaviour. I take into account that at the time of this offending you are on bail for other separate matters. You were also on a Community Corrections Order. Specific deterrence is a real issue for this sentence, but I’m also very mindful of the sentencing principles in relation to your youth.

Current sentencing practices

52I have had regard to current sentencing practices in this area. No case is exactly like yours, but I must sentence in this landscape.

COVID-19 pandemic

53I take into account the current circumstances surrounding the COVID-19 pandemic.  From information provided by Corrections Victoria, it is clear that personal visits to prison have been suspended, there has been a reduction of services and programs, and some prisoners are experiencing increased lockdown periods.  Those circumstances cause additional stress for prisoners and their families and also affect the availability of programs and supports.  In your case, you were working in the kitchen at Port Phillip Prison but lost this work after your transfer to another prison. You’ve tried to book into courses in prison but these have not been available to you.

54You have not had access to more substantial courses, such as drug and alcohol and coping with change, which you had attempted to book in to. I will take these privations into account in fixing your sentence.

Totality and concurrency

55Pursuant to s16(1A) Sentencing Act 1991, and given that these offences were committed while you on bail the presumption of concurrency is displaced. I have considered the need for cumulation and concurrency on each charge in this light. I will also have regard to the principle of totality and the need not to impose double punishment.

56The recklessly cause injury charge and the aggravated burglary, as well as the criminal damage charge took place close in time and place therefore there will be substantial concurrency.

57On your plea, your barrister submitted that a sentence of imprisonment in combination with a Community Corrections Order would be appropriate. I considered that submission but in the light of the gravity of the offending, the fact that you were on four separate counts of bail and a Community Corrections Order at the time of committing this offence, I decline to impose that form of sentence. I have however considered the mutual submission made by both prosecution and defence that, given your youth, a longer period on parole than would normally perhaps be imposed is appropriate in your case.

Disposition

58Richard Kernaghan, on Charge 1: aggravated burglary, you are convicted and sentenced to three years’ imprisonment

59On Charge 2: damaging property, you are convicted and sentenced to three months’ imprisonment

60On Charge 3: causing injury recklessly, you are convicted and sentence to six months’ imprisonment.

61On Summary Charge 12: committing an indictable offence whilst on bail, you are convicted and sentence to one month imprisonment.

62I direct that three months of the sentence on Charge 3 be served cumulatively on the base sentence on Charge 1, resulting in a total effective sentence of three years and three months.

63I declare that you must serve a minimum of 19 months before becoming eligible for parole.

Pre-sentence detention

64You were remanded on 25 November 2020 and have remained in custody since that time. Pursuant to section 18 of the Sentencing Act 1991, I declare that you have served 293 days (up to, but not including 10 September 2021) pre-sentence detention.

s6AAA reduction

65Pursuant to s6AAA Sentencing Act 1991, but for the plea of guilty, the sentence imposed would have been four years and six months’ imprisonment with a non-parole period of 25 months.