Director of Public Prosecutions v Kitchen
[2022] VCC 185
•25 February 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02141
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HARRY KITCHEN |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 January 2022 | |
DATE OF SENTENCE: | 25 February 2022 | |
CASE MAY BE CITED AS: | DPP v Kitchen | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 185 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentence
Catchwords: Intentionally cause injury – robbery – attempted armed robbery – recklessly causing serious injury – unlawful assault – commit indictable offence on bail – fail to answer bail – contravene condition of bail – 20-year-old young offender – serious offending – armed with a bladed instrument – two victims required hospital treatment - unprovoked attack – offending committed at night in the company of a co-offender - under the influence of drugs and alcohol – insufficient evidence to establish limb 1 and 3 of Verdins – whether drug use could be used as an aggravating factor – limited criminal history – first time in custody – early guilty plea – reasonable prospects for rehabilitation –impact of COVID-19 in custody
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Summary Offences Act 1996; Bail Act 1977
Cases Cited: DPP v Arvanitidis [2008] VSCA 189; R v Verdins (2007) 16 VR 269; Worboyes v The Queen (2021) 96 MVR 344; Rossi v The Queen [2021] VSCA 296; R v Mills (1998) 4 VR 235
Sentence:Total effective sentence of 3 years 10 months’ detention in a Youth Justice Centre
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M Sargent | Office of Public Prosecutions |
| For the Accused | Ms A Sharpley | Marco Man & Associates |
HIS HONOUR:
Introduction
1Harry Kitchen, you have pleaded guilty on indictment to four charges. Charge 1, intentionally causing injury pursuant to s18 of the Crimes Act1958 (‘the Crimes Act’); this offence carries a maximum penalty of 10 years’ imprisonment. Charge 2, robbery pursuant to s75 of the Crimes Act; this carries a maximum penalty of 15 years’ imprisonment. Charge 3, attempted armed robbery contrary to s321M of the Crimes Act; this carries a maximum penalty of 20 years’ imprisonment. Charge 4, recklessly causing serious injury contrary to s17 of the Crimes Act; this offence carries a maximum penalty of 15 years’ imprisonment.
2You have also consented to this Court hearing and pleaded guilty to four summary charges. These are:
· Unlawful assault contrary to s23 of the Summary Offences Act 1996, which carries a maximum penalty of 3 months’ imprisonment or 15 penalty units.
· Committing an indictable offence on bail, pursuant to s30B of the Bail Act 1977 (‘The Bail Act’), which carries a maximum penalty of 3 months’ imprisonment or 30 penalty units.
· Failing to answer bail, pursuant to s30(1) of the Bail Act, which carries a maximum penalty of 2 years’ imprisonment.
· Contravening a condition of bail, contrary to s30A of the Bail Act, which carries a maximum penalty of 30 penalty units or 3 months’ imprisonment.
3The circumstances of your offending are set out in the Amended Summary of Prosecution Opening for Plea dated 21 December 2021.[1] No issue was taken by your counsel in relation to the contents of this opening.
[1] Exhibit A.
Circumstances of the offending
4The offending occurred in the early hours of 27 March 2021. You were 20 years of age at the time and will turn 21 in March of this year. A friend of yours, Brodie Bridges, who was 19 years of age at the time, was complicit in the offending.
5Mr Thomas West and Ms Caillin Moore are the victims of the first incident. At about 12:07am, they were walking along Brighton Road in Ripponlea. They came across you and Mr Bridges. Without warning, you punched Mr West to the head, causing him to fall to the ground and lose consciousness (Charge 1).
6You then demanded that Ms Moore remove Mr West’s phone and wallet from his pockets and give them to you. You told Ms Moore that if she did not comply, you would stab Mr West in the heart, but would not touch her as she was a woman (Summary Charge– unlawful assault).
7You and Mr Bridges assisted Ms Moore in searching Mr West’s pockets and walked away with his phone and wallet (Charge 2). Mr West’s wallet contained bankcards, licenses, and other cards.
8This incident was captured on CCTV and lasted approximately two minutes.[2]
[2]Exhibit B – viewed in court.
9Ms Moore called triple zero. Mr West regained consciousness whilst she was on the phone. Mr West was transported to the Alfred Hospital. He suffered the following injuries:
(a) Closed head injury;
(b) Concussion (mild traumatic brain injury); and
(c) Soft tissue injury to the head, neck, and right arm.
10The second incident occurred shortly after the first incident. At approximately 12:33am, Joshua Snowsill, William Hughes, Max Ashman, and Jake Mongey left a hotel in St Kilda intending to go home. They saw you and Mr Bridges on the opposite side of the road. Both you and Mr Bridges yelled at them to ‘come here’ and then approached them. Both of you were wearing hoodies and masks/bandanas covering your faces. You and Mr Bridges demanded that they give you their phones and wallets. You were holding an edged weapon in your hand and told them it was a razor (Charge 3).
11You then swung the edged weapon at Mr Snowsill, slicing his face on the lower left chin area (Charge 4). At the same time, Mr Bridges punched Mr Mongey in the face with a closed fist.
12Mr Snowsill yelled to his friends to ‘run’ and they all ran away. As you went past them, you slashed Mr Snowsill in the back with the edged weapon.
13Mr Bridges chased Mr Hughes while you chased the remainder of the group. You demanded their wallets and threatened to stab them in the neck (Charge 3).
14They were able to flee and ran back to the hotel where, at approximately 12:38am, security called an ambulance. Photographs of Mr Snowsill’s injuries were taken by the police.[3] Mr Snowsill was transported to the Alfred Hospital. He was treated for the following injuries:
(a) An 8cm (approximately) cut to the left mandible (down to the underlying bone and through facial muscles, left mental nerve and marginal mandibular nerve); and
(b) A 15cm (approximately) superficial laceration to the left flank.
[3]Exhibit C.
15Mr Snowsill underwent plastic surgery to repair the wound to the face. He will be left with permanent scarring to his lower lip, chin, left facial and left chest area. The nerve damage means he will have permanent alternate sensation to the lower lip area and permanent alternate animation and movement to his lower lip and chin areas. The left back laceration required repair of the skin only.
16At the time of these two incidents, you were subject to an undertaking of bail which required you not to attend the city of Port Philip, not to associate with Mr Bridges, and included a curfew condition between 10pm and 6am (Summary Charges – Commit indictable offence on bail and Contravene conduct condition of bail).
17The undertaking of bail required you to appear at the Melbourne Magistrates’ Court on 5 May 2021. You failed to appear (Summary Charge – Fail to answer bail).
18Police located Mr West’s mobile phone near the vicinity of where the offending occurred. On 28 May 2021, a search warrant was executed at your home address. You were arrested and transported to the St Kilda police station. The police interview that followed was largely ‘no comment’ as was your right. You did tell the police that you had a history with drugs and that you knew Mr Bridges from school. You voluntarily provided your mobile phone password.
19Mr Bridges was arrested on the same day as you. In his interview, he denied any involvement in the offending.
20You have remained in custody since your arrest. The matter resolved at an early stage at a Committal Mention hearing on 6 October 2021.
Criminal record
21You have a limited criminal history. It represents three appearances in the Children’s Court. On 23 March 2018, charges of possessing a dangerous article in a public place and using obscene language in a public place were proved and dismissed. On 24 October 2018, you pleaded guilty to an offence of recklessly cause injury. You were placed on an eight-month probation order, without conviction. On 5 July 2019, in relation to charges of being drunk in a public place and hinder emergency worker on duty, you were placed on an adjourned undertaking for a period of 12 months without conviction.
Impact of the offending
22There are four victim impact statements. I have had regard to their contents. They are from Ms Moore, her mother, Ms Foster, Mr West, and Mr Hughes.[4]
[4]Exhibits D, E, F and G.
23Ms Moore read her statement out in Court. She said that the incident was the most traumatic thing that has ever happened to her. When her friend was hit and fell to the ground, and was not moving, she believed he was dead. Whilst he was in the emergency department, she sat outside crying hysterically. She went to stay with her mother for a few days as she needed to feel protected and safe as she was struggling with anxiety. The offending has impacted her sleep, with the incident constantly replaying in her head at night. Prior to the incident, she was socially outgoing and enjoyed running. She no longer enjoys running. Instead, she now feels tense, is constantly on alert and checks who is around. She feels the same when she is out with friends. News of similar incidents makes her vividly recall the terror she witnessed.
24Ms Foster’s statement was read out by the prosecutor. Ms Foster received a call from her daughter in the early hours of the morning after the incident. Ms Foster, living almost 4 hours away, felt incredibly helpless. Until today, Ms Foster worries about her daughter whenever she is aware her daughter is going out.
25Mr West in his statement stated that this incident will never leave him, and he has lost all trust in people. He has experienced difficulty going out and walking the streets at night.
26Mr Hughes likewise felt uncomfortable passing strangers in the street. He avoided walking the streets at night for a significant period following the incident. He is considerably less trusting of people.
27Whilst Mr Snowsill did not make a victim impact statement, it is obvious that the attack upon him with a bladed weapon would have been utterly frightening. He has been left with permanent scarring. Regrettably, the scarring will be a constant reminder to him of this appalling incident.
28Your cowardly offending has significantly impacted innocent members of the community going about their business.
Personal circumstances
29A psychological report dated 6 December 2021, prepared by Mr Simon Candlish, was tendered on your plea.[5] It sets out your personal history. Your counsel also set out your personal history in her written and oral submissions.
[5] Exhibit 2.
30You were born in March 2001 and are currently 20 years old. You are an only child to your parents. Your father works as a bus driver and your mother works at a plant nursery. You have a good relationship with your mother but have lacked affection or closeness with your father.
31You told Mr Candlish that your uncle had physically abused you on occasions when you were young. You also witnessed your uncle assaulting your aunt and described how helpless you felt being unable to stop it. You were exposed to your uncle’s aggressive behaviour for 12 months while you visited your cousins on the weekend. You felt scared and intimidated by him. The aggression you witnessed has remained with you.
32According to your parents you managed your schoolwork well and were considered intelligent by your teachers in primary school. While you did not display any behavioural issues at this stage, you described being a victim of verbal and physical bullying in primary school and you began responding with aggression. You told Mr Candlish that you choked a child and physically hurt other students.
33By your mid-teenage years, you were associating with negative peer groups. You started spending significant time away from home and staying with your friends and associates. You were truant throughout your schooling years and had several friends with whom you would engage in deviant behaviour. This included lighting fires together. You told Mr Candlish that you experienced adrenalin and excitement when you would light fires. This behaviour began when you were in Grade two. As a child, you also displayed cruelty to animals. You recalled kicking around a baby possum until it stopped moving and set fire to a bird in Grade five.
34You attended Auburn High School, at which point your behavioural issues became apparent in around Year eight. You described to Mr Candlish that you were chronically angry and continued having physical altercations at school. You were suspended from school on numerous occasions and asked to leave in Year nine. You reported that between the ages of 18-20 years you had been involved in approximately ten physical altercations but denied the use of any weapons.
35You told Mr Candlish that during classes at school you would tend to daydream and struggled to keep still. You would leave class and walk to your locker due to an inability to focus.
36Your employment history has been limited, having only worked with your paternal uncle as a labourer for some months at the age of 17 and for a further three months at the age of 18. You ceased working on both occasions due to your substance abuse. Prior to your remand, you had been receiving benefits from Centrelink.
37When you were 17 years of age, following significant disagreement at home with your parents, you were asked to move out. After some time couch surfing, you ended up obtaining housing through Launch Housing in Cheltenham. Subsequently, your relationship with your parents improved.
38Unsurprisingly, abuse of drugs has hindered your progress in life. You have a long history of substance abuse. You told Mr Candlish that you would attend school affected by cannabis and sometimes alcohol in Year nine. You drank alcohol from the ages of 14-15 years every day to the point of intoxication. You then progressed to smoking cannabis daily from the age of 16 years up until your remand. At 16 you also began taking acid and magic mushrooms, along with MDMA, and also abused considerable amounts of benzodiazepines. You have also smoked heroin twice in the past. You told Mr Candlish that using hallucinogens would contribute to your paranoia and aggression. On the day of the offending, you were under the influence of drugs and alcohol.
39You also have a history of mental health issues which appear to stem from your chronic drug abuse. You have been an impatient at a psychiatric facility on two separate occasions. You described having auditory hallucinations and feeling paranoid, and these have continued to some extent in custody.
40While you have been on remand, you have maintained contact with and have been supported by your parents, paternal extended family, and girlfriend.
Gravity of the offending
41As conceded by your counsel, this offending is very serious. The fact you were drug and alcohol affected and have little recall of your offending does not in any way detract from the seriousness.
42Members of our community are entitled to walk the streets at night without any fear of being attacked. Your offending was unprovoked, committed at night and in the company of another. It involved a number of wholly innocent victims. You have already heard me outline the impact of your offending upon them. Two of your victims required hospital treatment. You were armed with a bladed instrument which you used in your cowardly attack upon Mr Snowsill. As I outlined earlier, Mr Snowsill required plastic surgery to repair the wound to his left mandible. You have left him with permanent scarring.
43At the time of the offending, you were subject to an undertaking of bail.
44Your offending conduct must be denounced and deterring others from engaging in this type of senseless and cowardly violence is also an important sentencing objective. You must be justly punished, the community must be protected, and you must also be deterred from reoffending. In addition, your rehabilitation, bearing in mind your youth, remains an important sentencing consideration.
Submissions in Mitigation
45You entered pleas of guilty at the earliest opportunity. By entering pleas of guilty, you have facilitated the course of justice and have taken responsibility for your actions. You have also saved the community the time and cost of a trial and have spared the victims from having to give evidence. You are entitled to an additional and palpable discount, having entered pleas of guilty, when this Court is facing a considerable backlog of trials.[6]
[6]Worboyes v The Queen (2021) 96 MVR 344, 356-7 [35] – [39]. See also Rossi v The Queen [2021] VSCA 296 [13].
46I accept your pleas of guilty are accompanied by some, but limited remorse.
47You are still a young offender. Any sentence that I impose must encourage your rehabilitation. Successful rehabilitation of a young offender who has a limited criminal history and has not served a custodial term before, is not only of interest to you and your family but is also in the interests of the wider community. I have had regard to the principles in R v Mills.[7]
[7](1998) 4 VR 235.
48This has been your first experience of a prison environment, and it has been during the COVID-19 pandemic. Your conditions in custody have resulted in additional hardship that I am obliged to take into account. You have received no personal visits. The contact with your family and girlfriend has been limited to phone calls and virtual meetings. The availability of programs has been significantly curtailed. As a result of the Omicron outbreak, you were not able to work. Prior to that, you had been working in the prison gardens. I understand that you have only recently re-engaged in work at the prison as a window cleaner. You have been subjected to frequent lockdowns. I was told by your counsel, Ms Sharpley, that in the last two weeks up to the date of your plea hearing, you spent 23 hours of the day in your cell.
Mental Health and Verdins
49Relying upon Mr Candlish’s report, Ms Sharpley submitted that Verdins[8] was engaged and there should be some reduction in your moral culpability and some modest moderation of general deterrence.
[8](2007) 16 VR 269.
50On behalf of the prosecution, Ms Sargent opposed that submission, arguing that there was a lack of cogent evidence to enliven either limb of Verdins.
51During the plea hearing, I raised my concerns as far as any Verdins submission was concerned. I indicated that if the submission was being pursued, I needed to hear evidence from Mr Candlish. I also highlighted the fact that despite previous psychiatric intervention and admissions on two occasions, there was nothing before me to confirm any diagnosis or whether any condition was induced by the abuse of illicit substances.
52Ms Sharpley confirmed that she wasn’t calling any witnesses or producing any further material in support of her submissions. Whilst she recognised that any connection between your mental health, separate and distinct from drug abuse, was difficult to unpack and not a simple exercise, she nevertheless persisted with her submission, inviting some slight and modest reduction.
53It is abundantly clear that any Verdins submissions must be made on the basis of cogent evidence that should be subjected to rigorous scrutiny. Such submissions should not be made as a matter of routine.
54I am in no position to be satisfied on the balance of probabilities that Verdins is enlivened in the manner submitted by Ms Sharpley.
55Mr Candlish in his report, outlined Mr Kitchen’s history of paranoia including delusions and auditory hallucinations. He said that whilst this appeared to relate in part to his history of chronic drug use including hallucinogens, it would appear that these symptoms have persisted beyond these periods of drug use.
56Mr Candlsh states at [73]:
Based on Mr Kitchen’s self-report, as well as his test results, Mr Kitchen provisionally meets the criteria for schizophrenia. He describes referential delusions and reveals diminished emotional expression. He has referred to some auditory hallucinations although these are less apparent. He describes ongoing paranoia.
57Having said that, Mr Candlish made it plain that he has not had any access to Justice Health files or past psychiatric reports and so it is difficult to provide further clarity at this time.[9]
[9]See footnote 4 of the psychological report.
58There is no material before me to explain the reasons for your past admissions to hospital or psychiatric treatment. In the joint reference from your parents dated 13 January 2022, they say that just after you turned 18, you were taken by the police to the Mental Health Unit at St Vincent’s Hospital where you remained for just over a week. The medical staff told your parents that it was a drug induced psychosis. Several months later, there was a second admission to St Vincent’s Hospital of approximately four days duration.
59You alluded to these hospital admissions in your assessment with Mr Candlish. You told Mr Candlish that you were an inpatient at a psychiatric facility for approximately one week on two separate occasions. Following the first admission and discharge, you relapsed into illicit drug use. You were admitted a second time and was medicated with Haloperidol and Seroquel, however, you ceased taking the medication upon your release.[10]
[10]Ibid [43].
60The Youth Justice Centre Order assessment report, prepared by Ms Meyer dated 14 February 2022, states:
Mr Kitchen has two inpatient admissions in 2019 to St Vincent’s Hospital, where he was subject to a Temporary Treatment Order for 11 days and five days as a voluntary patient due to drug induced psychosis.
61There is no material before me relating to these hospital admissions, other than that they related to your chronic drug abuse. Despite being prescribed medication, you decided not to take it and continued abusing illicit drugs and alcohol.
62Mr Candlish also states that you meet the criteria for opiate use disorder, alcohol use disorder and cannabis use disorder.[11]
[11]Ibid [74].
63Further, you revealed childhood behavioural issues that are consistent with a conduct disorder. Mr Candlish states that without intensive appropriate therapeutic intervention and other forms of assistance, there is a high likelihood that you will develop a personality disorder as an adult.[12]
[12]Ibid [75].
64Mr Candlish states at [86]:
Mr Kitchen committed his offences in the context of considerable drug and alcohol abuse and was affected by substances at the time. He also appeared to be suffering mental health issues. Although this does not appear to have been a causal factor. His main motivation appears related to a desire to steal, due to problematic and hostile attitude; a disregard for others as well as potential sensation-seeking.
65In making her submission, Ms Sharpley relied upon paragraph 102 of Mr Candlish’s report where he states:
Mr Kitchen was highly destabilised and this disinhibited at the time of his offending. He likely felt a sense of disenfranchisement and possible resentment about his situation. In the context of limited empathy and hostile attitudes towards others, he sought to intimidate and exert power over others. His various conditions have impacted on his ability to think clearly and rationally and to effectively consider the consequences of his behaviour.
66In the absence of any viva voce evidence from Mr Candlish, what am I to make of paragraph 102? When he talks about his “various conditions”, what conditions is Mr Candlish referring to?
67At paragraph 100 of his report, Mr Candlish refers to Mr Kitchen experiencing a psychotic disorder and various substance use disorders, emerging problematic personality traits and provisionally, meeting the criteria for schizophrenia.
68When talking about these “various conditions”, is Mr Candlish referring to substance use or a psychotic episode? What evidence is there Mr Kitchen was psychotic at the time of the offending? What evidence is there that any psychosis at the time of the offending was not caused by Mr Kitchen’s substance abuse?
69There are simply too many unanswered questions. The evidence is wholly lacking in making any persuasive and meritorious argument relating to the moderation of moral culpability and/or the application of general deterrence.
70General deterrence does not necessarily require a realistic connection between the offending and any mental impairment. In declining to moderate general deterrence, I note that Mr Kitchen is now medicated and stable. I also take into account that the offending he engaged in was very serious.
71Ms Sharpley did not rely upon Mr Kitchen’s drug abuse in any mitigatory sense. On behalf the prosecution, Ms Sargent, relying upon DPP v Arvanitidis,[13] submitted that his history of drug use should be treated as an aggravating factor, because he had foreknowledge that his use of drugs would contribute to his paranoia and aggression. She relied upon Mr Kitchen’s statement to Mr Candlish:
· That his use of hallucinogens contributed to paranoia and aggression.[14]
· That his community aggression occurred in the context of being affected by substances.[15]
[13][2008] VSCA 189.
[14]Ibid [42].
[15]Ibid [52].
72Ms Sargent also relied upon the pre-sentence report dated 21 May 2019, in which Mr Kitchen admitted his drug use contributed to his offending and unstable mental health.[16]
[16]Exhibit 3, fifth paragraph on page 5 of report.
73In order for me to rely upon his abuse of drugs as an aggravating circumstance, I would need to be satisfied beyond reasonable doubt that Mr Kitchen had the requisite foreknowledge that his drug use would cause him to display aggression.
74I am not so satisfied. Mr Kitchen abused various drugs at different junctures of his life. He spoke to Mr Candlish in the context of abusing hallucinogens when he said they contributed to his paranoia and aggression. His comment about community aggression occurring in the context of being affected by substances, did not further illuminate the specific substances he was talking about. Similarly, when talking to the author of the pre-sentence report, he did not spell out which drugs he was specifically referring to that contributed to his offending and unstable mental health and made no specific reference to a display of aggression.
75According to Mr Candlish, at the time of this offending, Mr Kitchen had taken benzodiazepine. On the night in question, he had also been drinking some absinthe and had attended the pub with a friend.[17]
[17]Psychological report [11].
76There is no cogent evidence that Mr Kitchen had foreknowledge that benzodiazepine or alcohol, including absinthe, would make him behave aggressively. On the contrary, Mr Kitchen told Mr Candlish that the benzodiazepine had a calming effect on him.
Sentencing submissions
77Ms Sharpley conceded that bearing in mind the seriousness of the offending, a custodial sentence was inevitable. However, she urged me to impose a Youth Justice Centre Order. On behalf of the prosecution, Ms Sargent submitted the Court could not take the view that Mr Kitchen had reasonable prospects of rehabilitation or that he is particularly impressionable, immature, or likely to be subjected to undesirable influences in an adult prison. Ms Sargent submitted that a term of imprisonment was appropriate.
78Mr Candlish’s assessment reveals that in the absence of further supervision and treatment, you present a moderate to high risk in relation to future violent offending.
79It is hoped that you will receive treatment and supervision during the period of confinement and beyond while on parole. You have been free from drugs since your remand in custody on 28 May 2021. That is a period of eight months. You are currently on medication which includes antipsychotic and antidepressant medication.
80There is absolutely no doubt that to assist your rehabilitation you must remain free of drugs upon your release and continue taking any medication that is necessary.
81You told Mr Candlish that your current medication has been beneficial in keeping you calm. You have indicated an intention to remain compliant with your medication regime upon your release from custody. Further, you told Mr Candlish that you wanted to attend drug and alcohol rehabilitation upon your release. It is imperative that you act upon those uttered words.
82Hanna Meyer’s report in relation to your suitability for a Youth Justice Centre Order, assesses you as suitable. Ms Meyer states:
During interviews with Mr Kitchen, he presented as polite and respectful and was open and honest in conversations regarding his current and previous circumstances. Mr Kitchen stated that he would like to continue with therapeutic and educational interventions whilst serving his sentence.
83Whilst in custody, you have completed two drug and alcohol courses and have attended 12 counselling sessions with a psychologist.
84You are currently working as a window cleaner. Whilst there have been incidents in custody where you caused property damage and was involved in a physical altercation, currently it is reported that you have been responding well to staff and prisoners, and no safety concerns have been raised.
85Your parents remain supportive of you, and in particular you have a positive relationship with your mother. Upon release, you intend to live with your parents. You have been in a long-term relationship and describe your partner as ‘a good support’. You enjoy labouring work and intend to work as a carpenter in the future.
86In addition to finding that you have reasonable prospects of rehabilitation, Ms Meyer has also assessed you as someone who is likely to be vulnerable and impressionable to more entrenched offenders within an adult prison setting. I note that you are currently in the youth wing of Port Philip prison.
87I also note the observations of Mr Candlish that:
· Mr Kitchen revealed strong signs of social and emotional underdevelopment.[18]
· Mr Kitchen is also considered highly impressionable and ongoing exposure to antisocial attitudes and behaviours impacts negatively on his personality.[19]
[18]Psychological report [3].
[19]Ibid [104].
88Having regard to the matters set out in s32(2) of the Sentencing Act1991 (‘the Sentencing Act’), I am satisfied that you have reasonable prospects of rehabilitation, and you are someone who is likely to be vulnerable and impressionable to more entrenched offenders within an adult prison setting.
89As I said earlier, I have taken regard of the principles in R v Mills. I refer to principle three specifically:
A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified.
90Make no mistake, the offending you committed is serious. However, this is your first time in custody. Whilst it was hard at the beginning, you have maintained abstinence from drugs for a significant period. You are compliant with your medication regime. As Mr Candlish recognises, there is a lot of hard work ahead of you if you are to lead a good life, free from crime. You require ongoing, intensive supervision and treatment. This includes psychiatric and psychological support to assist you with substance abuse issues, interpersonal skills, emotional regulation, self-control, social integration, and risk management.
91In my judgement a Youth Justice Centre Order will serve all sentencing objectives. It will punish you but also give prominence to your rehabilitation needs.
92I sentence you as follows:
· On Charge 1, intentionally causing injury, you are convicted and sentenced to 12 months detention in a Youth Justice Centre.
· On Charge 2, robbery, you are convicted and sentenced to 18 months detention in a Youth Justice Centre.
· On Charge 3, attempted armed robbery you are convicted and sentenced to 2 years and 3 months detention in a Youth Justice Centre.
· On Charge 4, recklessly causing serious injury, you are convicted and sentenced to 3 years detention in a Youth Justice Centre.
In respect of the summary charges:
· Unlawful assault, you are convicted and sentenced to 14 days detention in a Youth Justice Centre.
· In respect of the Bail Act offences, namely, committing an indictable offence while on bail, failing to answer bail and contravening a condition of bail, as they all relate to the same grant of bail, you are convicted and sentenced to an aggregate fine in the sum of $400.
93I must bear in mind the principle of totality. The sentence of 3 years on Charge 4 will be the base sentence. Four months of the sentence on Charge 1 and six months of the sentence on Charge 3 will be served cumulatively upon Charge 4 and upon each other.
94That makes a total effective sentence of three years and ten months’ to be served in a Youth Justice Centre.
Pre-sentence detention
95Pursuant to s18 of the Sentencing Act, the period of 273 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the court’s record.
Section 6AAA declaration
96Pursuant to s6AAA of the Sentencing Act, I indicate that had Mr Kitchen pleaded not guilty and been found guilty, he would have been sentenced to a term of four years and six months’ imprisonment.
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