Director of Public Prosecutions v Penfold

[2019] VCC 1225

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 18-02059

DIRECTOR OF PUBLIC PROSECUTIONS

v

KENNETH PENFOLD

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	1, 5 and 6 August 2019
DATE OF SENTENCE:	7 August 2019
CASE MAY BE CITED AS:	DPP v Penfold
MEDIUM NEUTRAL CITATION:	[2019] VCC 1225

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr P. Kounnas	McFarlane Criminal Lawyers

HIS HONOUR: 

1Kenneth Steven Penfold, you have pleaded guilty to one charge recklessly causing injury.  That crime carries a maximum penalty of five years' imprisonment.  You are now 48 years of age.  You pleaded guilty to a settled indictment in the end after the matter had been listed as a trial.  You must get the utilitarian benefit of that plea of guilty. 

2It is hard to detect any remorse at all in this situation as were indeed running an alibi up until the time that you pleaded.  When police interviewed you about the matter, you made total denials.  But in any event, it has been a very sensible solution.  I will be pointing out to you shortly what would have happened had you proceeded with this as a trial and lost.

3The utilitarian benefit is important in this situation where, as I said in the course of the plea, the trial might have been entertaining but it would have taken up time with no real useful purpose in the end. 

4You do have a long and detailed criminal history.  As your counsel has pointed out and as I noticed, it is now approaching 20 years since you had a conviction for violence.  As such, there are other matters which involve threats and weapons and all sorts of things but I do take into account it has been now a long time since you were actually convicted of a crime of assault. 

5The circumstances of the offending will remain unknown to a certain extent so just deal with the bare bones of it.  You are the cousin of a Trevor Macklin.  Prior to this occurring, apparently the two of you had a close relationship and would see each other on a regular basis.  He began residing with another friend, a Derek Coates in a caravan in the Moe Gardens Caravan Park.  Mr Coates also knew you.  You had previously visited that caravan park and had previously knocked on the door and waited to be invited inside prior to entering the caravan. 

6I point out very clearly that you are not to be sentenced in any way, shape or form for the crime of burglary or aggravated burglary.  Between 6 and 11 February, you rode your bike apparently to the caravan park to visit the complainant.  The complainant asked you if he could borrow the bike, you agreed and the complainant took the bike and returned it 45 minutes later.  Where he had been I do not know.  You stayed at the caravan park for another half an hour or so and then left.

7The complainant says that about 20 minutes after that, you telephoned him and accused him of damaging the back wheel of the bike.  I make it clear that not much of it matters but I do not accept necessarily that is how all this came about.  A subsequent witness that the Crown were able to gaol order says it was all about cigarettes or smokes or something like that.  Again, I do not accept that either.  It is what occurs next that matters. 

8At around about 10 o'clock on 12 February, you returned to the caravan park with another person who it is now known and knocked on the front door.  You then entered the caravan or the annexe to it at least and you said, 'Where is the fucking cunt?' clearly referring to Mr Macklin. 

9You walked straight to where he was sleeping in a swag and kicked him in the face.  He woke up and you kicked him a few more times to the face and then started punching him.  He got on his knees and you continued to punch him.  You then of your own accord left and went to the door saying that you would be back.  An hour or so later, it seems a female friend of the complainant telephoned emergency services and reported the incident.  It may well have been that had she not done that, this matter would have never seen the light of day.

10The complainant ultimately went to hospital despite having in the end discharging himself without their permission and was found to have a small scratch across his left cheekbone, tenderness around the eye, tenderness in the front of his left ear and more importantly, comminuted fractures to the left side of his face, being one of them maxillary sinus and one of the posterior aspect of his zygomatic arch.  From my own knowledge of pathology, they could be clearly caused by one blow and if you are going to kick a man in the head a number of times, you must think that the probability of that occurring is pretty high.

11Your counsel has pointed out to me that the assault was not of long duration and that the injuries are not of the highest order even bearing in mind the crime is one of injury and certainly not serious injury.  I accept each of those submissions.  However, the fact of the matter here is that a man for reasons best known to yourself - and to him too I suspect - who was defenceless in a swag was kicked repeatedly to the head by you in his own place of abode.  And you do have priors albeit now of some antiquity for violence and you certainly have not led what could be called a law-abiding life. 

12In all those circumstances, I do regard this as a serious example of reckless injury because of essentially the way in which it was carried out.  Again, I have made that clear to your counsel in the course of the plea this morning.  I do not think I really need to take it any further.  In my view, the objectiveness of it is such that a custodial sentence is the only appropriate sentence.  Your counsel argued that a community corrections order could be appropriate.  You are currently on one.  This offending obviously breaches that but you have been on that order since 12 February last year. 

13I am told from the Bar table that you have not reoffended in this sort of way since, that you have been able over the last period of time to get some sort of contact back with members of your family and you have been doing reasonably well with the assistance staff with that CCO. 

14You are endeavouring to deal with drug addiction.  You are still on 40 mg of methadone and you are trying to get people out of your life who you previously associated with.

15I take all those matters into account.  I take into account also that your prospects of rehabilitation upon your release if you are prepared to continue with it should be reasonable.  Your overall risk of reoffending in these circumstances in a general sense has to be regarded as high, I would have thought, just simply having regard to your prior criminal history.  As I said, you have not reoffended since.  There have been no breaches of bail and I take those matters into account on your behalf. 

16However, it is my view that a custodial sentence just has to be the appropriate disposition.  I have moderated it very significantly because of the matters put by your counsel and because of the common sense involved in resolving this and avoiding the need for a trial.  However, taking all that into account, on the charge of recklessly causing injury, you are sentenced to imprisonment for a period of four months.  I understand there is no PSD?

17MR O'DOHERTY:  No.

18HIS HONOUR:  I will say this and I just make it very clear to you, Mr Penfold, that but for your plea of guilty pursuant to s.6AAA, I say that you would have been sentenced to be imprisoned for six months.  But I want to make this very, very clear as your counsel may well have advised you.  Had you fought this out on aggravated burglary and been convicted on that and being convicted of intentionally cause injury in these circumstances, the sentence would have been more in the order of four years and four months.  So the way you have resolved it has saved you a - in my view - very significant period of time in gaol.  All right.  There is nothing - no orders I have to make?

19MR KOUNNAS:  No, Your Honour.  

20HIS HONOUR:  No.

21MR KOUNNAS:  Sorry, custody management issues.  The methadone as Your Honour has already ‑ ‑ ‑ 

22HIS HONOUR:  No, it has got nothing to do with me.  That is for them.  Magistrates do it but I do not.

23MR KOUNNAS:  As Your Honour pleases.

24HIS HONOUR:  Yes, I just assumed something had been done in advance for that but anyway.

25MR KOUNNAS:  Yes.  It has already been discussed with ‑ ‑ ‑ 

26HIS HONOUR:  That is what I would have thought.  That is what I am saying.  They know what is going on and I do not - magistrates seem to feel this need to do 15 pages of custody issues but I do not.  My experience has been the custody officers know what they are doing.

27MR KOUNNAS:  Yes.  Yes, Your Honour.

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