Director of Public Prosecutions v Sumner
[2023] VCC 1379
•9 August 2023
S
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00276
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KANE SUMNER |
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JUDGE: | Her Honour Judge Hassan | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 8 August 2023 | |
DATE OF SENTENCE: | 9 August 2023 | |
CASE MAY BE CITED AS: | DPP v SUMNER | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1379 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence —
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; DPP v Meyers [2014] VSCA 314
Sentence: Total effective sentence of four years and nine months imprisonment. Non parole period three years and 6 months.
Section 6AAA declaration – seven years’ imprisonment with a non parole period of five years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Stefanovic | Office of Public Prosecutions |
| For the Accused | Mr W Barker | Balmer & Associates |
HER HONOUR:
Introduction
Kane Sumner, you have pleaded guilty to one charge of common assault for which the maximum penalty is five years' imprisonment, one charge of aggravated burglary for which the maximum penalty is 25 years' imprisonment, and one charge of intentionally causing injury for which the maximum penalty is 10 years' imprisonment.
The full facts and circumstances of your offending are set out in the prosecution opening which was tendered at your plea. Briefly stated they are as follows.
The victim of your offending is Ricky Scott[1].
[1] A pseudonym.
Mr Scott lived for a period with you and your partner and co-offender, Hayley Bernard, and your two children then aged four and seven. You formed the belief that Mr Scott had sexually touched your elder child.
On 31 July 2020 you went to Mr Scott’s home at night where you threatened and chased him with an axe (Charge 1). Mr Scott was fearful that you would kill him. You also drove at him in your vehicle, although I note this is not charged conduct.
On 24 September 2020 Mr Scott was staying at a motel. At 4.38am an unidentified co-offender knocked at his door. He knocked again at 4.43am. Mr Scott opened his door to be confronted by the unidentified co-accused and Ms Bernard, who made accusations that Mr Scott was a “pedo” and who had touched her children.
Mr Scott told the unidentified co-offender and Ms Bernard to leave but they remained at the motel and Ms Bernard called you and said, 'Do you want to come and see this pedo dog', to which you replied, 'Oh is that the pedo dog, yeah I’m coming now'.
You attended at 5.08am. You entered the property brandishing a knife and lunged at Mr Scott. Your unidentified co-offender had to stand between you and Mr Scott to prevent you striking him. You remained in the motel room with Mr Scott and your co-offender for around five minutes before leaving at around 5.20am, but you promptly re-entered, grabbed Mr Scott and bit off part of his right ear which you spat on the floor. (Charge 2 – aggravated burglary rolled up , Charge 3 intentionally cause injury).
An ambulance was called. Mr Scott was taken to hospital and treated, however, the portion of his ear that was bitten off could not be re-attached.
10.You were arrested on 24 September 2020. You told police you were home at the time of the offending. You were released on bail on 29 September 2020.
Victim Impact Statement
11.Mr Scott has made a victim impact statement. He says he used to be an outgoing and friendly person but now he is a depressed person who lives in fear for his life. He says he no longer has any friends because he does not know who he can trust. He says he feels ugly, embarrassed and self-conscious because of his ear.
Personal Circumstances
12.Turning now to your personal circumstances.
13.You were born in November 1993. You were 26 years old at the time of your offending and you are now 29 years old.
14.Your parents are separated but you have a good relationship with both your parents. You have a loving and supportive family. Both your parents regularly visit you on remand.
15.You attended school until Year 11. You report having been a poor student. It seems you were not academic but you were talented and completed a successful apprenticeship in roof tiling. You worked for roof tiling companies for six years before setting up your own business which was successful and at one point you employed four employees and were taking home wages of around $150,000.
16.You co-offender, Hayley Bernard, had been your partner for eight years before your offending. You separated six months after the offending.
17.You have an outstanding summary matter for offending in which Ms Bernard is the alleged victim. You were remanded for this offending on 3 March 2023. Your County Court bail for this offending, the offending before me for which you now fall to be sentenced, was revoked on 22 June 2023.
18.You have used cannabis sporadically since your youth. You started using methylamphetamine around six months prior to this offending. Your drug use contributed to the false beliefs you held about Mr Scott’s conduct.
19.You have no prior criminal history.
20.You have subsequent appearances in the Magistrates Court. On 9 June 2022 you were fined $500 without conviction for the offences of theft and trespass.
21.On 24 October 2022 you were fined $600 with conviction for cultivation of a narcotic plant (cannabis).
22.You co-offender, Ms Bernard, was sentenced in the Magistrates Court in February 2022 on charges of false imprisonment, trespass and theft. She was sentenced to a 12 month community correction order.
Matters in Mitigation
23.I turn now to matters raised at your plea in mitigation of sentence.
24.First, your plea of guilty, which although not an early plea, should attract a sentencing discount in accordance with the principle set out in the case of Worboyes.[2]
[2] Worboyes v The Queen [2016] VSCA 119
25.Secondly, your good work ethic and your family support which are relevant to my assessment of your prospects of rehabilitation, which it was submitted by your counsel should be assessed by me to be good even though you have committed subsequent offences.
26.Thirdly, your lack of a prior criminal history.
27.Fourthly, there was extra-curial punishment in that you have had to close down your business and will likely lose your home as you will be unable to service mortgage payments when in custody. This, it was submitted, may be taken into my consideration of what constitutes just punishment in your case.
28.Fifthly, although recognising the principle of parity was not engaged, your counsel submitted that the sentence imposed on Ms Bernard in the Magistrates Court was relevant to my assessment of a proportionate sentence for you.
29.Sixthly, you have served 112 days of imprisonment since 3 March 2023, which although not referable as pre-sentence detention in this matter, should remain within my contemplation in the application of the principle of totality.
30.Seventhly, the delay in this matter finalising during which time you have demonstrated your rehabilitation.
31.And finally, the seriousness of your offending.
32.Although the seriousness of your offending at the motel was not disputed, it was submitted that the aggravated burglary was unsophisticated and unplanned. It was submitted the charge of common assault did not warrant the imposition of a term of imprisonment.
33.It was submitted by your counsel in all the circumstances a sentence combining a period for custody with a corrections order was open to me.
34.The prosecution submitted that the only appropriate sentence was a term of imprisonment consisting of a head sentence and a non-parole period.
Objective Gravity and Moral Culpability
35.Turning now to my own assessment of the gravity of your offending and your moral culpability.
36.First, I reject the submission that Charge 1, common assault, does not warrant a sentence of imprisonment. In my view attending the victim’s home armed with an axe and chasing him with the axe and doing so out some misplaced sense of retribution is serious offending and your moral culpability is high.
37.The charge of aggravated burglary is characterised by many of the well-recognised aggravating features which make the offence of aggravated burglary such a serious offence[3]. You attended the motel in the early hours of the morning and were armed. The motel was not the victim’s home, but it was somewhere he was entitled to feel safe. You were someone who, given your conduct in July, the victim must have feared. You entered with the intent to affect retribution, that is, your actions can properly be described as vigilante behaviour, and this is the most serious aspect of your conduct, in my view. The charge of aggravated burglary is a rolled-up charge consisting of two unlawful entries but I accept the defence submission that they are separated only by minutes and the seriousness of your offending is not heightened because you went in twice.
[3][3] Director of Public Prosecutions v Meyers [2014] VSCA 314 at [47] –[49]
38.Your behaviour was highly aggressive and threatening and culminated in what can only be described as a vicious and barbaric act when you bit off part of the victim’s ear. In respect of this incident, your behaviour is objectively serious and your moral culpability high.
Sentencing Considerations.
39.I turn now to the relevant sentencing considerations.
40.The sentencing principles of both general and specific deterrence are engaged in sentencing you. The message must be sent by the sentence I impose that citizens cannot take retribution against others for injuries real or imagined. The message must also be sent to you that you must never behave in this violent and disgraceful manner again.
41.I must denounce your conduct. Given the dangerousness of your behaviour I regard community protection is also engaged in sentencing you.
42.You must be punished for what you have done. I accept the submission made by your counsel that you have lost your business and risk losing your home if incarcerated. This is a form of extra curial punishment I will take it into account in my assessment of what constitutes just punishment for you.
43.I take into account your plea of guilty. It is not an early plea, but it is a plea, and I sentence you in accordance with the principles set out in the case of Worboyes. By virtue of your plea you accept criminal responsibility but I find there is no evidence of any real or insightful remorse on your part.
44.There has been delay in finalising this matter, largely because it was contested. You have re-offended in the meantime, and I therefore reject the submission that the delay has allowed you to demonstrate your rehabilitation. I take into account, however, the anxiety and stress that you would have experienced with a serious matter pending before the court.
45.Notwithstanding you have continued to abuse drugs and have reoffended since this offending, I am prepared to assess your prospects of rehabilitation as fair given the family support you enjoy and your hitherto solid work history.
46.There is no application of the principle of parity as between you and Ms Bernard, notwithstanding you were both involved in the same incident. She was sentenced summarily for entirely different offences. Moreover, I do not see how the sentence imposed on her has any relevance to my assessment of a just and proportionate sentence for you.
47.I take into account the 112 days you have served in custody on other offences in my contemplation of the application of the principle of totality.
48.I take into account that conditions in prison remain difficult.
49.I have had regard to the sentencing statistics for the offence of aggravated burglary provided to me by the prosecutor.
50.Taking into account all the matters I am required to under the Sentencing Act, and matter personal to you, I intend to sentence you as follows.
51.You can remain seated in the circumstances.
52.On Charge 1, you are convicted and sentenced to nine months' imprisonment.
53.On Charge 2 you are convicted and sentenced to three years and six months' imprisonment.
54.On Charge 3, you are convicted and sentenced to three years' imprisonment.
55.Charge 2 is the base charge. I direct that three months of the sentence on Charge 1 and one year on the sentence on Charge 3 be served cumulatively upon Charge 2 and upon each other. That makes a total effective sentence of four years and nine months. I direct you serve three years and six months before you are eligible for parole.
56.Pursuant to s18 of the Sentencing Act, you have served 55 days by way of pre-sentence detention and I direct that be entered into the records of the court.
57.Pursuant to s6AAA of the Sentencing Act, had you pleaded not guilty I would have sentenced you to a sentence of seven years' imprisonment with a non-parole period of five years.
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