Director of Public Prosecutions v Kinnane

[2014] VCC 1123

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00212

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES BRIAN KINNANE

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 July 2014
CASE MAY BE CITED AS:	DPP v Kinnane
MEDIUM NEUTRAL CITATION:	[2014] VCC 1123

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C Parkes
For the Accused	Mr J Farrington

HER HONOUR:

1James Brian Kinnane, you have pleaded guilty to one count of attempted armed robbery and other related summary offences.  The maximum penalty for attempted armed robbery is 20 years imprisonment.  The maximum penalties for the summary offences are as follows.  Possession of property suspected of being proceeds of crime, two years.  Possession of graffiti implements, 25 penalty units.  Fail to answer bail, 12 months' imprisonment and resisting police, 25 penalty units or six months imprisonment.  The circumstances of your offending is set out in the summary of prosecution opening Exhibit A. 

2On Monday 27 May 2013, at about 9.05 p.m., you went to the Pizza Hut in Parkdale.  You disguised your face with sunglasses, a hat and you placed the hood over your head from a black jacket.  The manager of the store Kevin Dong, and another employee Amrinda Dep Singh were in the premises. 

3As you went to the premises you yelled "Open the till and give me the cash".  You had your right hand in your pocket.  You then approached Singh at the counter and continued to demand him to open the till.  Singh told you that he did not have the authority to open the till, but despite that, your demand continued.

4Dong was able to obtain a metal rubbish pole from close by and confronted you.  He said to you to show him a knife or gun, and then he would open the till.  Dong pointed to the camera in the store and told you that he needed to see a weapon before he would open the till to show his boss.  A scuffle broke out between you and Dong, and you tried unsuccessfully to take the pole from him.  You then left the store.

5As you were leaving, you showed Dong a black handled knife and threatened him.  The length of the blade was about 15 centimetres.  Blood was located on both the floor of the premises and on Dong.  Tests later  conducted indicated that it was likely to be your blood.  The incident was also captured on CCTV.

6At 10.50 p.m. the police found you at Parkdale Railway Station and you were arrested.  You were effected by alcohol and police observed a cut to one of your fingers on your left hand.  At the time of your arrest you were found in possession of a back pack which contained a Tom-Tom GPS, a Navman GPS, a Holden car key, an airport car parking pass and a Revo glasses case.  Each of their items had been stolen earlier that evening.  The police also located eight aerosol spray paint cans.

7After you were arrested, you were interviewed by police.  You denied you were involved in the attempted armed robbery at Pizza Hut and the commission of other summary offences relating to possession of the property and the spray paint.

8You were bailed to appear at Melbourne Magistrates Court on 4 June 2013.  When you attended court, you were advised to speak to a solicitor, however you left court before your matter was heard, and a warrant was issued.  The police attended at your home on 24 June 2013, and you were informed by police that you were under arrest.  A scuffle broke out between you and two police members and you were ultimately remanded in custody.  You spent one day in custody.

9No victim impact statements were obtained from either Dong and Singh, however both Dong and Singh in their statements and evidence given at the committal reveal the effect of your actions on the relevant night, which was no doubt an unhappy experience for both of them.

10You are currently aged 19 years, but aged 18 at the time of this offending.  You have the support of your maternal grandparents and also most significantly your mother with whom you reside.  You completed Year 11 and commenced Year 12, though you left school during that year.  You have had a number of part time jobs, but are currently on a disability support pension.

11I was informed that you suffered a head injury in 2013 from an accident skateboarding on a family holiday, although there was no medical material before me regarding any long term effects from this accident. For the purposes of sentencing you for these offences, you are a young offender as defined by the Sentencing Act 1991. It was submitted on your behalf that the principles of Mills are applicable.  I accept that submission, and given your age, despite your prior matters and the prevalence of this kind of offending, rehabilitation is a primary sentencing consideration.

12This is your first appearance in the adult court.  You have a number of prior matters that have been dealt with in the Children's Court many relating to the possession of stolen property and damage or vandalism to property.

13This offending is a step up in terms of the seriousness of the offence.  Attempted armed robbery, with its 20 year maximum penalty and the prevalence of this kind of offending on soft targets, frequently involves the imposition of a custodial penalty.  Considerations to specific deterrence remain relevant to the sentence that I will impose.  You have pleaded guilty to these offences and will obtain the full benefit of that.  I do note, however, that both victims in this matter were cross-examined at committal, but that the matter resolved soon thereafter.

14From the material provided to me, it is apparent that your drug and alcohol use has a connection to your current psychiatric issues.  This matter was listed before me in June 2014 and adjourned for the purposes of obtaining a forensic psychiatric report.  As events unfolded, you did not attend for your appointment, and no such report was obtained.  I was however provided with a report from Dr Carmen Yeung, Exhibit 1, Consultant Psychiatrist from Peninsula Health who has been treating you since September 2013.

15The material therefore related to a period after the commission of these offences.  In the report, it is indicated that you have had two psychiatric admissions in 2013 to Frankston Hospital.  Both of these admissions were as a consequence of the reporting of psychotic symptoms by you after the consumption of Methamphetamine and Marijuana.

16You were placed on a community treatment order which included outpatient treatment which expired in March 2014.  You were again admitted on three occasions this year in May and June, with each admission relating to presentation of psychotic symptoms linked with your substance abuse.

17It is noted in the report the presence of anti-social personality, together with abuse of illicit substances means the likelihood of impulsive, disinhibited, aggressive behaviour being present is increased, whether psychotic symptoms are present or not.  In addition, the likelihood of James, that being you, experiencing psychotic symptoms appears related to your substance use, with clear evidence of worsening symptoms, particularly when using multiple illicit substances.

18You are currently on a community treatment order, and I was informed that you were compliant with both appointments and treatment.  It is clear from the material available to me that your offending is directly connected to your substance abuse issues.  This must be controlled and addressed by you, so as to avoid remaining within the criminal justice system.

19I have had you assessed for a community correction order, and with that are a number of conditions, including those relating to addressing your substance abuse.  It will be necessary for you to comply with these conditions, and these are in addition to those on your current community treatment order. 

20I am not suggesting this will be easy for you.  You heard me express concerns to your counsel regarding your capacity to be able to deal with these issues.  You are fortunate to have family and a mother who supports you and is wanting to assist you.  Breach of the conditions of this order that I will impose will have you coming back before me to deal with these matters again.

21Despite the serious nature of your offending, and considerations of general and specific deterrence, just punishment and protection of the community being all relevant sentencing matters to take into account, these need to be balanced with your particular circumstances including your youth, substance issues, mental health and as previously mentioned rehabilitation.  It is clear that you require supervision, monitoring and assistance in the future to address substance abuse and any resulting mental health issues.  This is an opportunity for you to address your substance abuse, and to hopefully keep out of trouble in the future.

22Mr Kinnane, I propose in respect of these offences to convict and sentence you to a community corrections order for a period of 18 months.  There will be a number of conditions on the order.  One will be that you undertake unpaid work for a period of 150 hours.  That you will be required to comply with the treatment and rehabilitation condition regarding drug and alcohol assessment and treatment which will include testing.  And that you continue with mental health treatment which would likely to be guided by the current regime under your community treatment order.

23The supervising office will be Frankston Community Corrections and you are required to attend there by Thursday at 4 p.m.  Has your counsel explained these conditions to you?

24OFFENDER:  Yes, yes thank you Your Honour.

25HER HONOUR:  And are you willing to comply with that order?

26OFFENDER:  I'll try my hardest Your Honour.

27HER HONOUR:  Thank you.  The other order I make Mr Kinnane is that a sample has been obtained by the police and I order pursuant to s.464ZF retention of that blood sample.  Could you have Mr Kinnane sign the order please.  Mr Farrington, would you like to take the order down to your client and just explain that to him please and then have him sign it.

28MR FARRINGTON:  Yes Your Honour.

29HER HONOUR:  Thank you, eleven o'clock tomorrow.

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