Director of Public Prosecutions v Kessler
[2018] VCC 560
•26 April 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 17-01007
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL KESSLER |
---
| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 March 2018 |
| DATE OF SENTENCE: | 26 April 2018 |
| CASE MAY BE CITED AS: | DPP v Kessler |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 560 |
REASONS FOR SENTENCE
---Subject: Aggravated burglary, recklessly causing injury
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: 4 years' imprisonment, non-parole period 27 months---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Buckland | |
| For the Accused | Mr S. Ginsbourg |
HIS HONOUR:
1You have pleaded guilty to one charge of aggravated burglary for which the maximum sentence is imprisonment for 25 years, one charge of recklessly causing injury for which the maximum sentence is imprisonment for 5 years, and one charge of theft for which the maximum sentence is imprisonment for 10 years.
2Each of the offences was committed by you on the 29th September 2016 when you were a young offender aged 20.
3The circumstances of your offending are contained in a summary prepared by the prosecution dated 15th March 2018 which was tendered in evidence and read in open court by the prosecutor Mr Buckland. Your counsel Mr Ginsbourg agreed that the summary is accurate and forms a proper basis upon which I can sentence you. It is not necessary that I here repeated what is there set out except in an abbreviated way. These sentencing remarks need be read however in conjunction with the prosecution summary. The summary was also accompanied by a detailed chronology.
4On the 28th September 2016 you joined in a plan hatched by a co-offender O’Neill to rob brothers Andrew and Simon George. The motive for this was O’Neill’s belief that Simon George had stolen two grams of the drug MDMA from him. Others who joined in this plan were co-offenders Brent Whelan, Jesse Slatter, Lachlan Thackrah and two other unidentified young men. O’Neill made it clear he intended violence.
5You played the part of the driver. You collected the co-offenders in your father’s car and drove them to Andrew George’s home arriving at 10.21am. By that time you all believed that Simon George was at the home and it was the intention of all of you to assault him. You and O’Neill banged loudly on the front door waking Andrew George whilst others went and kicked in the back door gaining access and running through the house looking for Simon George who was not present. They then joined you and O’Neill at the front door. A confrontation then ensued at which time Whelan produced a tomahawk and threatened to assault one of the residents before you and the others dragged Whelan away.
6You then drove the group to Simon George’s address in Murrumbeena arriving around 11.02am. You remained in the car. The others gained entry to Simon George’s home and confronted him about the alleged theft of MDMA which he denied. Eventually Whelan indicated he was satisfied by Simon George’s denials and that the group would return to the home of Andrew George whilst O’Neill remained with Simon George.
7Whelan, Slatter, you and Thackrah then returned to Andrew George’s home. You were again the driver and to some extent a look out. Whelan was armed with a tomahawk and a folding knife, Slatter a screwdriver and Thackrah with a fence pailing. The prosecution only alleges against you that you had knowledge that Whelan was armed with a tomahawk.
8Whelan, Slatter and Thackrah assaulted Andrew George including Whelan striking him several times to the head and body with the tomahawk. Slatter stabbed him several times with the screwdriver. Thackrah struck George with the fence pailing and Whelan also stabbed him with the folding knife.
9Andrew George was assaulted over a period of about 4 minutes by Whelan, Slatter and Thackrah and was left unconscious in a pool of blood with extensive injuries including stab wounds to the chest, head and arms as well as multiple lacerations. He also suffered a right pneumothorax. The list of injuries is at paragraph 34 of the summary and there were also photographs tended depicting the injuries.
10Whelan and Slatter then went through the house stealing a number of items including a television set before fleeing on foot.
11Whilst all of this was going on you remained outside and then left in the car.
12You offended because you were part of a joint criminal enterprise to attack and rob Andrew George in his own home. Although you did not directly take part in the assault you were charged on the basis that you knew Whelan to be armed and your knew that it was probable that Andrew George would be assaulted and probably injured and that items would be stolen from him.
13Your offending in each of the charges is serious. This is the kind of offending of an almost lawless community. Attacking people in their own homes because of drugs will not be tolerated. Although you were on the periphery and thus involved, the offending embarked upon directly by the others in the group falls about mid-range for this kind of offending. I accept your responsibility was diminished in that you were not exactly sure what was going to happen but you went along with the group regardless. You appreciated that the others would probably inflict injury upon Andrew George. Your role was lesser, confined to driving the group around and acting as the look-out although that is not exactly clear. You were present at each of the entries to Andrew George’s home which made up the aggravated burglary charge.
14You were arrested the following day and were generally co-operative with the police.
15O’Neill only attended at Andrew George’s address on the first occasion of aggravated burglary. He was sentenced to one year imprisonment and a four year community corrections order for one charge of aggravated burglary and one charge of possessing a drug of dependence. He was thus dealt with for lesser charges than you.
16Whelan had significant prior convictions. He pleaded guilty to a rolled-up charge of aggravated burglary, as you have, and intentionally causing serious injury, and the theft of the television. He was sentenced to a term of imprisonment of 9 years with a minimum of 7 years before being eligible for parole.
17Slatter and Thackrah are yet to be dealt with. Your role in this offending was different to that of Whelan and is reflected in the fact he pleaded guilty to a charge of having intentionally caused serious injury, a charge which carries a much higher maximum penalty. You played a much lesser role. Also you have no prior convictions and you are a young offender.
18I admitted into evidence victim impact statements from the victim Andrew George and his mother. The impact which this offending has had upon the lives of Andrew George and his family is there to be seen. He thought he was going to die as a result of the physical stabbing injuries he suffered in the attack upon him and he continues to suffer psychologically and this will doubtless be the case for some time. In passing sentence I have taken the victim impact statements into account.
19You were arrested on the 30th of September 2016 and you remained in custody until bailed on the 7th October 2016. You complied fully with your bail conditions. There was a contested committal and you were committed for trial on 23rd May 2017. There were a number of directions hearings and there were discussions between your lawyers and the prosecution with a view to resolving the charges into a plea of guilty but that was unable to be achieved until the day of trial before me on the 5th March 2018 and you pleaded guilty the following day to the charges now on the indictment.
20Although you did not plead guilty at the earliest opportunity your pleas of guilty are nonetheless valuable in my opinion. You have pleaded guilty to the charges and that is very much to your credit. By your pleas you have saved the time and costs of a trial and you have helped facilitate the course of justice. For that you are entitled to a reduction in sentence and this reduction will be reflected in the sentence that I will shortly pass.
21Further, I treat your pleas of guilty as evidencing your remorse for your offending.
22You were again remanded in custody after the plea on the 16th March 2018. You have served 49 days in custody as pre-sentence detention.
23I turn to your background. Mr Ginsbourg filed a helpful outline of his submissions which I marked as exhibit 1. Mr Ginsbourg conceded at the outset that your offending was serious and requires a sentence of immediate imprisonment and the fixing of a non-parole period.
24From a young age you have suffered from muscular dystrophy and developmental delay. You began your schooling in a remedial school. You were diagnosed at a young age ADHD for which you were treated with Ritalin until aged 8. You later struggled in a normal stream primary school both socially and academically. You undertook the VCAL course in secondary school the VCE course being too difficult for you.
252014 was your final year at high school. In 2015 you undertook further studies but failed. In 2016 you had four months employment collecting trolleys in a supermarket. By this time your drug habit which you had commenced at school, initially smoking cannabis, then moving to ecstasy then ice use had taken over. You were sacked from this job.
26In 2017 you did some driving for your father’s dry cleaning business on a voluntary basis. Your father suffered ill health and couldn’t run the business and you were forced to step up and keep the business running which you did. Mr Ginsbourg submitted that having regard to your health issues and your limited training and education this was a significant achievement and reflects the fact you are drug free. I accept that submission.
27Mr Ginsbourg submitted that at the time of offending you were heavily abusing the drug ice and in consequence you were sleep deprived and not thinking straight accounting for your impulsive decision to join the others and this was how you became involved. I accept this submission. It is supported by the psychological assessment of you by John Karamonos who’s report I admitted into evidence as exhibit 2. I have had full regard to that report.
28I was told and accept that from the time you were released from custody after your initial remand you have not used any drugs again. I admitted into evidence a report from Raphael Aron the head counsellor at Gateway Family Counselling Centre as exhibit 4 and Mr Aron gave impressive evidence before me. After your release on bail you entered Delmont Hospital as an in-patient to rid yourself of drugs and you have remained as an out-patient. You have had on-going counselling from Mr Aron who described your progress in ridding yourself of drugs and applying yourself to work in your father’s business as remarkable. He said you were unmanageable because of drug use when first released from remand but since then there has been a complete turnaround with a sustained trajectory of improvement in your mental health. You have removed yourself from bad peer groups and you are assisted by family support. You are significantly over-weight because of your other health problems and you are very tall. Mr Aron described you as a little man in a big body. He said you have insight into your offending and you realise that you have brought a level of pain to your family by your offending. Mr Aron said you will require on-going counselling whilst in prison and he undertook to visit you for that purpose whilst you are in prison.
29Your uncle Gary Reichlin also gave evidence and provided a written reference for you, exhibit 5. He described you as a gentle, soft and kind young boy and as being thoughtful and respectful. He said this offending was out of character. Save for the fact you were drug affected at the time you offended and absent drugs I accept you have always been a person of good character.
30That also came through from a number of other references from your uncle Rhett Kessler (exhibit 6) and Justin Ayer your fitness trainer of the last 16 months (exhibit 7).
31Your father also provided an impressive letter which I accept. What comes through is your remorse for your actions and the efforts that you have made to date to rehabilitate yourself. I also received character references from your uncles Michael Aizicowitz and Craig Kessler. All this evidence is favourable to you and I have taken it into account.
32The impression I have gained from the evidence is that you have had a number of health and disability issues in your life and you have done your very best to work within and around the existence of those health and disability issues. You are a gentle giant led astray like so many other decent young people by drugs. Your downfall culminated in this offending. To your credit you have done your very best, along with the assistance of family, and relatives, to turn your life around and rid yourself of drugs. Whilst experience shows that one must always exercise caution in trying to predict the future or prospects for rehabilitation of a long term drug user like yourself, from what I have seen I think your prospects for rehabilitation must be reasonably good.
33Mr Ginsbourg submitted correctly that in passing sentence I must have regard to your youth which should be the primary sentencing consideration. He submitted that the sentence I pass should reflect the seriousness of your offending and denounce it, but I must also have full regard to the fact you offended as a young offender and you are still young aged 21 and I must not impose a sentence that would damage your prospects for rehabilitation. I generally accept those submissions. I did not understand Mr Buckland to disagree. He emphasised the seriousness of the overall offending which you went along with.
34Mr Ginsbourg submitted there should be a large gap between the head sentence imposed and the non-parole period fixed to enable you to continue along the path that you have successfully embarked upon to rehabilitate yourself. I agree with that and have fixed the non-parole period that provides generally for your early release on parole.
35On charge 1 aggravated burglary you are convicted and sentenced to a term of imprisonment of three and a half years.
36On charge 2 recklessly cause injury you are convicted and sentenced to a term of imprisonment of one year.
37On charge 3 theft you are convicted and sentenced to a term of imprisonment of six months.
38I direct that 6 months of the sentence imposed on charge 2 cumulate upon the sentence imposed on charge 1 making a total effective sentence of four (4) years imprisonment and I direct that you serve a minimum term of twenty seven months imprisonment before being eligible for release on parole.
39For the purposes of s.6AAA of the Sentencing Act 1991, I state that had it not been for your pleas of guilty to the charges I would have imposed a total effective sentence of six (6) years and I would have fixed a non-parole period of 4 years.
40I declare there has been 49 days pre-sentence detention served under the sentences passed this day and direct that 49 days be reckoned as having been already served, be entered into the records of the court and be deducted administratively.
41The prosecution seeks the making of a forensic sample order under s. 464ZF of the Crimes Act 1958. That order was not opposed and for the reasons stated in the order I have signed it meaning that whilst in custody you may be approached by a police officer and asked to supply a forensic sample from your body in the form of a swab from your mouth. If you refuse the officer may use reasonable force to obtain it.
42Are there any questions arising out of that? Mr Ginsbourg?
43MR GINSBOURG: No, Your Honour.
44MS FOOT: Nothing, Your Honour.
45HIS HONOUR: Very well. Very well. Would you take Mr Kessler into custody, please?
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