Director of Public Prosecutions v Kerney

[2023] VCC 350

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-22-01437

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW KERNEY

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JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2023
DATE OF SENTENCE:	9 March 2023
CASE MAY BE CITED AS:	DPP v Kerney
MEDIUM NEUTRAL CITATION:	[2023] VCC 350

REASONS FOR SENTENCE
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Subject:Criminal law – sentencing

Catchwords:              Plea of guilty – aggravated burglary – make threat to kill – commit indictable offence whilst on bail – limited prior criminal history – offences committed whilst intoxicated – entry to the property with intent to commit an assault – confrontation and threats to kill the victim whilst armed with a wooden pole – no actual grievance with the victim – offender mistakenly believed another person present a the property – limited prior criminal history – compliance with CISP bail – reasonably good prospects of rehabilitation subject to ongoing treatment for substance abuse and anger management

Legislation Cited:      Crimes Act 1958 ss 77, 20; Sentencing Act 1991

Cases Cited:DPP v Meyers (2014) 44 VR 486; Worboyes v The Queen [2021] VSCA 169; Boulton v. The Queen (2014) 46 VR 30

Sentence:                  Eight months' imprisonment followed by an 18-month community correction order.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Botros	Office of Public Prosecutions Victoria
For the Accused	Mr G.W. Douglas	George Douglas & Co

HER HONOUR:

1Andrew Kerney, arising from an incident on 19 March 2022, you have pleaded guilty to a charge of aggravated burglary (Charge 1) and making a threat to kill (Charge 2).

2In addition you have pleaded guilty to a related summary offence of committing an indictable offence, namely the aggravated burglary, whilst on bail (Summary Charge 5).

Circumstances of offending

3The circumstances of your offending are set out in the Summary of Prosecution Opening dated 3 February 2023 which is the agreed factual basis upon which you are to be sentenced.

4The offending relates to an incident that occurred on the evening of 19 March 2022 at the home of the victim, Ms Buffy Johnson, who lived with her three children in Saxonwood Drive, Sunbury. At the time of the offending, Ms Johnson's children were 15, 13 and 11 years old.

5

Ms Johnson is the former partner is an associate of yours, Daniel Abra. At the time of the offending, Mr Abra lived with you at an address in Moore Road, Sunbury. On 19 March 2022, at 2.30 pm you drove another male, Graham Carr, to

Ms Johnson's address where he met Mr Abra. Mr Abra was assisting Graham Carr move out of the Moore Road property. After you dropped him off, Mr Abra then drove them both back to the Moore Road address to pack Mr Carr's belongings.

6Later that evening, at approximately 6.15 pm, you drove your blue Ford Falcon to Ms Johnson's address. You parked your car in the driveway, before getting out of the car, armed with a wooden pole. CCTV footage captures you as you then approach the front door of her house, carrying the wooden pole in your right hand. You believed Mr Carr was still present at the house.

7As it was a warm evening, Ms Johnson had left her front door open with the security screen door closed, but not locked.

8You opened the security screen door and entered her home carrying the wooden pole (Charge 1 – aggravated burglary). At this point the charge of aggravated burglary was complete. You had entered the property as a trespasser with intent to commit an offence involving an assault to a person. The prosecution accepts this person was not Ms Johnson but rather Mr Carr, who you wrongly believed to be at the property. At the time of entry, you were carrying the wooden pole as a weapon.

9Ms Johnson was sitting in her loungeroom. She heard a voice outside, and the security door open. She then heard a male voice yelling inside her home, so she grabbed her phone and walked to the front door. Ms Johnson saw you standing there, and immediately recognised you as a friend of Mr Alba's. She knew you as 'Andrew' but otherwise had no personal association or friendship with you.

10At this point, whilst swinging the wooden pole, you shouted, 'I’m gonna kill you. Where is he?' as you walked towards the kitchen. Ms Johnson shouted at you to get out of her house. You again turned to Ms Johnson and shouted, ' I’m gonna kill you. Where the fuck is he?' (Charge 2 – make threat to kill).

11Ms Johnson's 15 and 11 year old children came out of their bedrooms and stood behind their mother. Ms Johnson thought you were looking for her ex-partner, and said, 'He's not here, get out'. You hesitated, and then walked back towards t front door. Ms Johnson followed a few metres behind you as she was scared, and wanted to lock the door behind you.

12You then walked out the front door and stood on the front lawn. You continued to yell towards the house.

13Ms Johnson shut and locked the door behind you, before calling 000. She could still see you outside her front window. She asked her 15 year-old daughter to write down the registration number of your car.

14You then went around to the side of the house and began banging on the house with the wooden pole. Ms Johnson was worried you would come back through the side gate and asked her children to run and lock the back door. She heard you yell, 'Get the fuck out here, Graham!', and then realised you were looking for Graham Carr.

15You then returned to your Ford Falcon and drove away.

16The entire incident was over in under two minutes. You were inside the property for no longer than 30 seconds.[1]

[1]At the plea hearing, the prosecution confirmed that the CCTV footage shows you were at the property for 1 minute, 30 seconds and in the house no longer than 30 seconds.

17The police attended Ms Johnson's home in response to the 000 call. Understandably, Ms Johnson told police that she was scared and shocked by what had occurred.

18The police then went to your address in Moore Road, Sunbury. When they arrived, Mr Carr opened the door and advised police you were in the backyard. Police found you there in the same clothes you were seen wearing on the CCTV footage at Ms Johnson's property. You were arrested and conveyed to Broadmeadows Police Station for interview. Although you initially denied the offending, you identified yourself when you were shown stills from the CCTV footage.

Nature and gravity of offending

19

Aggravated burglary is a serious offence, reflected in the maximum penalty of

25 years' imprisonment prescribed by Parliament. In the case of Meyers[2], the Court of Appeal, in referring to its earlier decision in Hogarth, observed:

'…Hogarth established that current sentencing practices for serious forms of aggravated burglary need to change, as they did not reflect the objective seriousness of such offending. Aggravated burglaries which involve confrontation and violence, or threats of violence, should be viewed very seriously, whether the target of the attack is a former domestic partner or a person against whom some other grievance is held.'

[2]DPP v. Meyers (2014) 44 VR 486 (“Meyers)

20The decision in Meyers identified a number of non-exhaustive factors a sentencing court should consider when assessing the objective gravity of the offence of aggravated burglary.[3] Turning to this case, you attended at the property due to a grievance with Mr Carr in the mistaken belief he was present at Ms Johnson's home. You entered with the intention of assaulting Mr Carr, and were armed with a wooden pole. However, you did not use any force to enter the home, such as breaking the door or smashing windows, as the security door was unlocked.

[3] Meyers at [48]

21Ms Johnson and her children are entitled to be safe in their home, but your conduct you breached the sanctity of their home.

22I accept that the incident was short-lived, and was neither sophisticated nor elaborately planned offending. Rather, in anger and in a state of intoxication, you attended the property armed with a wooden pole in search for Mr Carr. The fact you were drunk does not,  of course,  excuse your conduct. You must have quickly appreciated Ms Johnson was present in the house, and that at least two children were present after they came out of their rooms.

23

I accept you left the house shortly thereafter, having been in the house for only

30 seconds. Whilst acknowledging the vulnerability of the victim and her family, I do not consider this to be an upper end example of offending of this type. However, it could not be described as offending at the very lower end either.

24It is important to recognise that the offence of aggravated burglary is complete upon entry to the premises, and the sentence I impose on that charge does not involve punishment for what occurred following entry. However, your intent on entry is a significant feature going to the gravity of the offence, and is informed by your actions once inside the house.

25

Once inside, when confronted by Ms Johnson, you yelled, 'Where is he?' and threatened to kill Ms Johnson not once, but twice. You did so whilst armed with the wooden pole and swinging it around. In other words, in the context of entering with house with the intention of assaulting Mr Carr, you directly threatened to kill

Ms Johnson. You did so despite her yelling at you to leave. Although these threats were not made in the immediate presence of the children, the children then came out of their bedrooms immediately after you made the threats and while you were still in the house, armed with the wooden pole.

26Although no victim impact statements have been provided, this must have been a frightening experience for the victim, and her children, particularly as you did not leave the property immediately. Rather you remained on the property, banging the wooden pole against the wall, yelling out for Mr Carr, necessitating the victim to ask the children to run and lock the back door. The victim, in her statement to police, accurately described this as a 'shocking and scary' ordeal for her and her young family.

27It is also of concern that you committed the aggravated burglary whilst on bail, having been granted bail on your own undertaking by police on 9 February 2022, approximately one month earlier.

Personal circumstances

28I turn now to your personal circumstances. You are presently 44 years of age, having been born in August 1978.

29Much of your personal history is detailed in a helpful letter provided to the court by your mother, Shirley Langshaw.[4] You are one of three children, with an older brother and a younger sister. You retain the support of your mother and sister, as was demonstrated by their attendance at your plea hearings and the insightful references they provided on your behalf.

[4]Exhibit 1

30Your mother says you were a quiet child and displayed learning difficulties from a young age. Between 12-18 months you required the assistance of an occupational therapist and did not learn to talk until the age of three.

31Your parents divorced when you were aged nine and you lived with your father and older brother. Your father began a new relationship soon after. His new partner and her two sons then moved into the home. When you were 14, your mother moved to Queensland to live there with her new partner, your sister and two half-siblings. After your father and stepmother had two other children, your brother returned to live with your mother. You remained with your father.

32Due to conflict with your stepbrothers, you moved to Queensland and began work as a plasterer. You lived in Queensland for approximately three years, before returning to Melbourne where you continued in this trade. Your mother says your stepbrothers stole from you, leading to your decision to return to Queensland again at the age of 22.

33You had one significant relationship that ended after five years. Your mother says this led to a significant decline in your mental health. Alcohol abuse had been a problem from the age of 18, but you began to drink excessively after the relationship broke down. She says you would become emotional when you drank.

34After years of struggling, she says you returned to Melbourne to be close to your father. You would return to Queensland intermittently. In Melbourne, you obtained factory work for a year. When you lost this job, your mental health again declined, and you were prescribed anti-depressant medication to manage your suicidal thoughts. Your mother states you eventually found casual work at a meatworks factory, but continued to suffer from mental health issues, particularly after being informed your father had been diagnosed with an aggressive form of cancer.

35During this period, you were abusing alcohol, mixing it with your prescribed medication. Your father and older brother no longer wanted you to reside with them, and you then moved in with your father's friend, Graham Carr.

36Your prior criminal history is not substantial. In 1997 you were sentenced in Victoria to a fine, with conviction, for offences including unlawful assault and being drunk in a public place.  Your Queensland priors include possession of drugs and drug paraphernalia in 2003, dishonesty offences in 2013, and being a public nuisance and failing to leave licenced premises in 2019.

37Appropriately, Mr Douglas also informed me that you are to be sentenced in the Magistrates' Court later this month for three separate offences, two of which were alcohol-fuelled incidents, namely:

(i)A road rage incident in February 2021;

(ii)Making a false report to police after hitting a tree whilst driving in July 2021; and

(iii)A further road rage incident in February 2022.

38A report from Forensicare dated 16 February 2023, states that you were admitted to the Mid-West Area Mental Health Service on 15 March 2022 and diagnosed with an, “acute stress reaction and a mental and behavioural disorder due to harmful alcohol and stimulant use, and cannabis abuse”.[5] This was your first engagement with mental health services, and occurred after you attended at a police station seeking assistance with suicidal thoughts. You were discharged following one night in hospital. You have also disclosed significant methylamphetamine and cannabis abuse at the time of the offending.[6]

[5]Exhibit 3 – MHARS report dated 16 February 2023

[6]Community Corrections Assessment Outcome Report dated 2 March 2023

39This is the context in which your offending occurs three days later, on 19 March 2022. Your grievance with Mr Carr related to your belief that, having assisted him to move to Sydney to live, you felt hard done by when the lease on the property was not transferred to you. You report that you paid Mr Carr cash for the bond on the lease, but that this was not repaid. You were aware Mr Carr had returned to Melbourne to sort out some loose ends, and was staying with his friend, Mr Alba, in Sunbury. Then, in a state of intoxication, you went around to the victim's house to confront Mr Carr.

40In my view, your future prospects very much depend upon two interrelated issues: your ability to maintain abstinence from alcohol and illicit drugs, and your ability to control your anger. The need for the sentence to specifically deter you from alcohol-fuelled offending remains a relevant sentencing consideration for the protection of the community.

41After being remanded in custody on these matters for 40 days, you were granted bail subject to compliance with the Court Integrated Services Program (CISP) on 27 April 2022. A final progress report from your CISP Case Manager, Ms Miller reports that you successfully concluded your engagement in drug and alcohol treatment and counselling through Footscray Health Services in September 2022.  You have been re-employed by the meatworks factory and are currently employed five days a week on a casual basis. Mr Douglas states that you have reduced your consumption of alcohol significantly but are not abstinent. You initially lived with your brother whilst on bail but following a dispute you are now living in rooming accommodation.

Matters in mitigation

42On your behalf, Mr Douglas highlighted the following matters that are relevant in mitigation of your sentence.

43First and foremost, you pleaded guilty to these offences at an early opportunity. Your plea is an indication of remorse and through which you acknowledge responsibility for your offending. Your plea also saves the community and the court the cost and time associated with a trial, and significantly, saved the victim any trauma associated with giving evidence in court. Additionally, at a time where there is a backlog of trials in the wake of the pandemic, your plea has heightened utility.[7] You are entitled to, and will receive, a significant sentencing discount for your early guilty plea.

[7]Worboyes v The Queen [2021] VSCA 169

44Secondly, Mr Douglas highlighted the fact that, now aged 44, you have a reasonably limited prior criminal history. I accept that notwithstanding difficult and disrupting experiences in your childhood and early adolescence, you have limited priors, and no history of offending as serious as this. It is notable however, that your previous offending was all alcohol related.

45Thirdly, it was submitted that since being bailed you have successfully engaged in treatment for your alcohol abuse. It is argued that this is best demonstrated by your ability to maintain full-time employment.  There is force in that submission. Your mother states that, in the long term, you plan to return to live in Queensland where you enjoy her ongoing support and that of your sister, Kylie Kerney.

46In Kylie Kerney's letter to the court, she states that since being bailed you have remained focused on your mental health, have secured employment and have, “remained on track”, even when faced with the distress of the passing of your father.[8]

[8]Exhibit 1 – Reference from Kylie Kerney (undated)

47

Whilst acknowledging the serious nature of these offences, on your behalf

Mr Douglas submitted that no additional time in custody is warranted and would potentially disrupt the progress you have demonstrated in your rehabilitation.  Rather, it was submitted that a combination sentence of imprisonment and a community correction order, with no additional time to serve would meet all relevant sentencing considerations.

48Mr Douglas referred me to the guideline judgment of Boulton,[9] where the Court of Appeal stated:

“… a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a minimum term of imprisonment (such as, for example, aggravated burglary…). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.”[10]

[9]Boulton v The Queen (2014) 46 VR 308

[10]Ibid, at [131]

49On behalf of the prosecution, Mr Botros submits that a term of imprisonment requiring no further period in custody would be inadequate in the circumstances of this case. The Crown submissions highlighted the objective seriousness of the offending, notably that it occurred in the home of the victim and her children, exposing the children to a frightening event. Mr Botros correctly characterised your offending as brazen and an escalation in your offending behaviour.

50Whilst acknowledging the utility of your plea and the steps you have taken towards your rehabilitation; the prosecution submits the offending warrants the imposition of a period of imprisonment with a non-parole period fixed.

Consideration

51In my view there are particular aspects of your offending that mark its seriousness. Although entry to the house was not forced, you attended armed with a wooden pole, intending to confront Mr Carr. Fuelled by anger, whilst intoxicated, you swung the wooden pole in Ms Johnston's presence before threatening her directly, even though you had no grievance with her. Indeed, she only had a passing acquaintance with you.

52As stated, although the incident was short lived, it must have been a frightening ordeal for the victim. It is an aggravating feature that you were aware her children were in the house, yet you did not leave the property immediately. They were exposed to your erratic and confronting behaviour. Offending of this nature undermines the expectation of safety people are entitled to in their homes.

53I consider this to be a reasonably serious example of offending of this nature.

54Balanced against this, you have a relatively limited criminal history and, since being bailed in April 2022, you have taken positive steps in your rehabilitation, particularly supported by the CISP program. You have reduced, but not ceased, your alcohol intake and are maintaining full-time employment. You appear to appreciate the link between your drug and alcohol use and the offending behaviour on this occasion. I assess you have reasonably good prospects of rehabilitation but will benefit from ongoing treatment and counselling, particularly to achieve and maintain abstinence from illicit drugs and alcohol, and to assist in your ability to control your violent responses when frustrated or angry.

55In making this observation, I have had regard to the assessment reports of Community Corrections and MHARS, which both record some relatively recent drug use.

56Neither counsel referred me to any comparable cases. The offence of aggravated burglary is a broad one and can be committed in a wide variety of circumstances. In the end, each case turns on its own facts.

57In cases such as these, the principal sentencing considerations are those of general deterrence, just punishment and denunciation. In sentencing you, I must deter others from entering the homes of others, intending to do violence. I accept that the need for the sentence to operate as a specific deterrent is be moderated to some extent, having regard to your limited priors and progress towards rehabilitation.

58Balancing the matters to which I have referred, I have concluded that the objective gravity of your offending warrants the imposition of an immediate custodial term beyond the 40 days already served. However, given the weight that attaches to your early plea, particularly a plea entered at this time, and your positive engagement with treatment programs whilst on bail, I consider a combination sentence of imprisonment followed by an appropriately conditioned CCO is able to reflect all relevant sentencing considerations whilst enhancing the positive progress made in your rehabilitation, and the community safety that will naturally follow.

59You have been assessed for a CCO and been found suitable. You have consented to such an order being made.

60Finally, I have had regard to the fact you were remanded at the height of the pandemic, and during which the conditions in custody were made more difficult by the restrictions in place, including lockdowns, to respond to the pandemic. Some restrictions still continue. I have taken this additional burden of your imprisonment into account, particularly given this is your first experience of custody. It is also relevant that you report suffering from depression requiring medication, which I have also taken into account.

Sentence

61Balancing the various matters to which I have referred, whilst having regard to the maximum penalty of 25 years' imprisonment in respect of Charge 1 and 10 years' imprisonment in respect of Charge 2, I sentence you as follows:

62On Charge 1 – aggravated burglary, you are convicted and sentenced to seven months' imprisonment. This is the base sentence.

63On Charge 2 – make threat to kill – you are convicted and sentenced to five months' imprisonment. I order that one month of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1.

64On related summary offence Charge 5 – committing indictable offence whilst on bail – you are convicted and sentenced to one months' imprisonment to be served concurrently with other sentences imposed in this case. This gives a total effective imprisonment term of eight months.

65Following the imprisonment component of your sentence, upon release, on Charges 1 and 2 you are placed on a community correction order for a period of 18 months. The focus of that order is to assist in your continued rehabilitation. In addition to the standard conditions that apply to all community correction orders, you will be subject to treatment and rehabilitation conditions in relation to drug use, alcohol abuse and mental health. I further direct that you engage in any offence specific programs, as directed, including any anger management program. You will also be subject to supervision.

66Pursuant to s18 of the Sentencing Act 1991, I declare that 40 days be reckoned as the period of imprisonment already served under the sentence I have imposed.

67Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty to these offences, I would have sentenced you to a period of three years' imprisonment with a non-parole period of two years.

68Finally, I make the disposal order sought by the prosecution, noting it is not opposed.