Director of Public Prosecutions v Lennane

[2016] VCC 278

Pages 1 - 7   IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT WANGARATTA
CRIMINAL JURISDICTION

CR-15-02163

DIRECTOR OF PUBLIC PROSECUTIONS

v

KANE MICHAEL LENNANE

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Wangaratta
DATE OF HEARING:	11 March 2016
DATE OF SENTENCE:	15 March 2016
CASE MAY BE CITED AS:	DPP v Lennane
MEDIUM NEUTRAL CITATION:	[2016] VCC 278

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Ms D.Price	Greg Duncan

HIS HONOUR:

1Kane Michael Lennane, you have pleaded guilty to one charge of aggravated burglary whereby a person whom you intended to assault was present and one charge of causing injury recklessly.

2The seriousness of these offences are reflected by the maximum penalties that can be imposed on those who commit them – 25 and 5 years imprisonment, respectively.

3Although there are varying accounts of what happened on the night of the event, beyond matters which I do not need to decide upon, the Prosecution outlined its case against you in the summary, which will be appended to the sentence and was exhibited.

4You and the victim in this matter, Scott Guzenants, were neighbours and lived on opposite sides of the same street here in Wangaratta.

5On Saturday 28 February 2015 the victim was at home with his partner and children.  You attended his property at about 10 pm.  The victim’s partner, who was sitting under the front veranda, went inside the house to get him out as you wanted to see him. When he went out the front door and saw you entering the house, he retreated. At that point you assaulted him hitting him with closed fists to his face.

6It is alleged that unknown males entered the house and continued the assault on him until you fell to the ground where you continued hitting him primarily to the face.  It was alleged that unknown males kicked him in the ribs.

7Two stepchildren of the victim witnesses the incident.  At some point your partner may have arrived at the property and was also present.  Eventually the three of you left Guzenants' property.

8The victim was taken to the emergency department for treatment and discharged the following morning.  He suffered a large haematoma to his right eye and a sore head caused by the blows. Luckily there were no fractures or more serious injuries.

9When the police were called you were arrested and interviewed on the night.  You initially made denials about entering his home and assaulting him, probably understanding the seriousness of that allegation. However, having previously said that the incident had occurred outside the home, once you were confronted with the evidence available to the police you indicated that you had, in fact, entered.

10By way of explanation you told the police that earlier that night you had heard him yelling outside the front of your house.  You opened the front door and yelled at him to ‘stop acting like a knob head as per usual’.

11You said you had a scuffle with him outside the home and grabbed him around the neck and gave him ‘a couple of haymakers’ and then that both you and him returned to your respected homes.

12You said that the tension between of you had been working up for some time and that is the background to this particular matter.

13You then confessed to the police and added some background information as to what led to this event.  You indicated that he would get drunk and create a ruckus in the front yard and on the street particularly on Saturday nights. Because you were often away from work you were particularly concerned about your children, since you would not be there to protect them and. You claimed that your partner had been threatened by him and his partner in the presence of the children, on a number of occasions, when you were not around.

14On that day you said you had people over during the afternoon and evening.  Your other neighbour, Ms Parnell, came over and told you she had seen Guzenants and his partner looking through the windows. In her statement Ms Parnell confirmed that she had seen his partner snooping around the front yard of your place and that she had informed your partner of this.

15Later that night, as you were putting your child to bed, you said you heard the victim yelling out the front.  You went out and took the chance to confront him.  He ran inside his home and you chased him in. You caught him in the hallway, punched him twice with a fair bit of force, and told him not to come across the road anymore and to leave your family alone.

16You indicated that your intention was to protect your children by scaring off from attending you property when you were away.  You denied kicking him, told police you went to the home on your own.  You acknowledged that you should have let police handle the matter and that you should not have initially lied to them.

17You were held in custody until 1 March when you were released on bail.  Accordingly you have been in custody for two days which will be reckoned as days of pre-sentence detention.

18You entered a plea of guilty of these charges at the committal hearing without need for any cross-examination of witnesses and I give you credit for the early plea which will attract a discount on your sentence.

19I received victim impact statements from the victim and his family which were filed and tendered in evidence.  They reflect that such an assault in someone's home is a significant event which the community looks to the court to denounce and punish.

20Irrespective of the dispute that may have existed or the feeling that may have arisen because of the behaviour of your neighbours there is never a explanation or a reasonable excuse for taking matters into your own hands like a vigilante. If everything that occurred was to be a matter of course for neighbourhood or other disputes the community would be in real trouble.

21You readily acknowledge that it would have been able to be dealt with by way of contacting the police.  Irrespective of whether that was viable or not that was the option that you should have taken.

22You are 35 years of age.  You have a prior criminal history. However, it is a prior which relates to when you were 19 years old whereby you damaged some property.  You were fined and effectively you were placed on a bond.  Benalla Magistrates' Court recorded no conviction on that occasion.

23I have looked at the material that was tendered on your behalf and heard the plea that was made for you. I have determined, upon reviewing that material, that the most appropriate sentence in this case is the imposition of a community corrections order and I had you assessed for that purpose.

24The report of the community correctional services has found you suitable for such an order with a component of supervision and community work.  I intend to make such an order as appropriate under the circumstances.

25This is one of those cases where the tension between a very serious criminal offence, which carries a very long maximum imprisonment penalty, exists side by side with the circumstances pertaining to the offence and a likelihood that you are a lower risk of reoffending and the other positive matters that appear on your behalf such as your family life, your working history, and your relatively clean history.

26In my view this is precisely the sort of matter which the Court of Appeal was intending to indicate should be appropriate for a community corrections order.  I propose to impose such an order as appropriate in these circumstances. You have no other concerns or issues which need to be addressed and you are suitable for such an order.

27I will therefore order that you be placed on a 12 month community correction to be supervised for that period of time and to complete 50 hours of community work.  I place no other conditions on that particular order.  You should report to the community correctional officers at Murphy Street before 4 pm by 15 March.

28I should tell you that this order is not a get out of gaol free card.  An order that imposes community work and supervision puts you under a number of obligations and that is to attend appointments, to answer phone calls, to be available for supervision, and to be available to do the work that is required of you.

29You are in employment and so I have made those hours the minimum that I could.  I should warn you that, having been given this opportunity for an offence as serious as aggravated burglary, if you choose to breach this order in the next 12 months you will be brought back before me and you will be able to be punished for that breach and probably resentenced for these particular offences and at that time you will be in much more serious trouble than you are now.

30I would urge you to understand the obligations that a community corrections order imposes on you and to abide by them.  When the documentation is ready I will sign it.

31MS PRICE:  Thank you.

32HIS HONOUR:  Do you have any other ancillary orders?

33MR CORDY:  Yes.  There was a disposal order.

34HIS HONOUR:  Yes.

35MR CORDY:  And also a 464ZF order.

36HIS HONOUR:  Yes.

37MR CORDY:  I think they were ‑ ‑ ‑ 

38HIS HONOUR:  I think they were handed up and they were not objected to.  I will sign those orders.

39MR CORDY:  As Your Honour pleases.

40HIS HONOUR:  Just give me a moment.  Yes.  Mr Lennane, in relation to this matter I should tell you this, at some point a police officer will make a request of you for a biological sample.  That is to place your DNA on a database.  I have made that order because of the seriousness of the offence and because I - it is in the best interests of the community.

41When that request is made if you do not consent to that happening - and it is usually of a scraping from the mouth, which is not a painful procedure - should you not consent at that time the authorised police officer can use reasonable force to take a blood sample from you, do you understand?

42OFFENDER:  Yes, Your Honour.

43HIS HONOUR:  Yes.  I should declare that you have served two days by way of pre-sentence detention and I will have that noted in the records of the court.  And but for your plea I would have sentenced you to nine months' imprisonment.

44MR CORDY:  As Your Honour pleases.

45HIS HONOUR:  We'll just wait until that documentation is ready.  Mr Lennane can come out of the dock and sit behind your Counsel.  Mr Lennane, I should say one more thing to you.  There might arise in the future some situation similar to what you were confronted with.  You have young children, you're not that old and there's a few more years to go.

46OFFENDER:  Yep.

47HIS HONOUR:  I think you should be very careful to deal with situations like this in the way in which you've dealt with them on this occasion.  Not because it's going to be a bad idea in the first place but because you'll now have a prior for aggravated burglary and the circumstances of that are going to be known in the future so it's just going to be a bad idea overall.

48OFFENDER:  Yes, Your Honour.

49HIS HONOUR:  So take it on board and hopefully that won't happen again.

50OFFENDER:  It won't.

51HIS HONOUR:  Good. I'll stand down.

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