DPP v Kennedy (a pseudonym)

[2022] VCC 1868

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUCIEN KENNEDY (a pseudonym)[1]

[1]To ensure that there is no possibility of identification of the victim, this judgement has been anonymised by the adoption of pseudonyms.

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:	26 October 2022
DATE OF SENTENCE:	26 October 2022
CASE MAY BE CITED AS:	DPP v Kennedy (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1868

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW - SENTENCE

Catchwords:          Guilty plea – one charge of recklessly causing injury – victim is accused’s brother – where trial involved allegations of sexual offences and jury unable to reach a verdict – where jury acquitted accused of intentionally causing injury and guilty of recklessly causing injury – delay – no criminal history – excellent prospects of rehabilitation

Legislation Cited:         Crimes Act 1958; Sentencing Act 1991

Sentence:  $500 fine without conviction.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. R. Wilson	Solicitor for the Office of Public Prosecutions
For the Accused	Mr F. Ralph	Marshall Jovanovska Ralph Criminal Lawyers

HIS HONOUR:

1Lucien Kennedy[2] on Indictment L10326737 you were arraigned before a jury panel on 27 July this year.  You pleaded guilty to recklessly causing injury and not guilty to intentionally causing injury against your younger brother. 

[2] A pseudonym.

2The jury trial then took place in relation to the causing injury offence and in respect of multiple sexual offences against your brother.  On 5 August the jury acquitted you of intentionally causing injury and in accordance with your guilty plea found you guilty of recklessly causing injury.  The jury was not able to reach a verdict in respect of the sexual offences which have now been discontinued by the prosecution.  Reckless injury carries a maximum penalty of five years' imprisonment.

3You were born in October 1995 and you were therefore aged 22 at the time of the offending.  You and your brother were living together with your parents and I think your sister at the family home.  As of the circumstances of the offending, your brother gave evidence. I will quote from the transcript of his evidence-in-chief at the trial.  The relevant questions and answers are as follows:

“’Do you recall that incident, what happened?"  "Yes, I do."  "Whereabouts were you at the time?"  "I was sitting on the bench, it was in the kitchen, but it was not actually in where we do the cooking, it was on the other side sitting on a chair."  "You were having a conversation I think with your mother at that point, were you?"  "Yes, we were arguing I can't remember exactly what about.  But I'm pretty sure I was actually doing homework or assignment work on the table, but we got into an argument.  She basically went into the laundry to the trough and started crying."  "What about [Lucien], where was he at that point?"  "He was outside."  "Did he come in at some point?"  "Yes, he did."  "What did he do when he came in?"  "He pretty much went directly to Mum to comfort her."  'That was in the laundry, was it?"  "Yes." "And then - and after that what happened?"  "Then he comforted Mum for a bit and he came out and started yelling at me to apologise and yeah, just ah, basically yelling at me."  "Do you remember what he said?"'

'"Ah, no, apart from you need to apologise."  "Did you apologise?"  "Not immediately, no, um and not before the events that occurred."  "What happened after?"  "So, basically he yelled at me for a bit, I had my back turned I was trying to ignore him and just go back to my work.  And he put me in a choker hold and he basically strangled me and pulled me back out of the chair and I tried, you know, punching behind me to try and stop him, but I couldn't.  Then after a bit I passed out."  "Do you know which arm he used?"  "I think it was his right arm.  But I can't say exactly for sure, because I was facing away from him so I couldn't see."  "Did he say anything to your ah, during this applying the chokehold?"  "Not that I can remember, no, it was pretty much, I was just panicking at that point."  "And how long after he grabbed you do you think you blacked out, if I can put it that way?"  "I generally had no idea how long I blacked out for."  And then Mr Wilson clarified, "But from the time he first grabs you, to when you - sort of, was your last memory?"  "Oh, okay, probably about 10 seconds."'

'"So, when you came back to your senses, whereabouts were you located at that point?"  "I was located on the floor between the lounge and the kitchen and I wasn't located on the floor where my chair was because I was sitting at the end of the table towards the door."'

4He went on to say he had moved a considerable distance and he remembered seeing his mum.  He said that his father then came onto the scene. He described himself as having a panic attack and that his father tried to calm him down.  He said he was screaming and shouting a lot and he would not let anyone touch him. He was asked this, “And was there any discussion with your brother in the days after about what had occurred and about the physical attack".  He said,

"I can't say for sure if there was a discussion between my parents and him but he did try to apologise a couple of days after to me.  What was said in that conversation I can't remember, I just remember I didn't accept the apology and I didn't accept the apology, that's all I remember."

5Your mother also gave evidence and she argued with the victim about him getting in trouble at school for posting an inappropriate comment on social media. She was upset and she ran into the laundry crying. You came in and she said to you, he has done something stupid again at school.  She said you then went in and confronted the victim and that's when the incident happened.  She said she heard a big bang and a bit of a rustle, “that's when I came out of the laundry and [Lucien] and [the victim] were on the floor”. “[Lucien] had his arm around [the victim]'s head and throat.”  That was your mother's evidence. 

6Your father gave evidence about seeing the aftermath or the end of the confrontation. 

7You said in your evidence, “There was no - I didn't say anything, I didn't like eh, there wanting to yell or anything like that.  Um, it was just a flick of the switch and then - and what happened next just happened in the moment, so quickly, but there was no vocalisation of any of it”.  As well, these allegations were put to you in the record of interview way back in 2019, and you gave answers at questions 320 and 321.  You made admissions to assaulting him, broadly consistent with the facts that I have outlined.  So, that's the scenario on which the recklessly cause injury is based.

8This all became intertwined with the sexual offences which had to go to trial.  It seems to me, but for that fact, this matter would have been dealt with in 2020 in the Magistrates' Court.  These facts would not have justified the matter proceeding to this court and that's a significant matter in this case.

9You have entered a guilty plea before the jury to the charge of recklessly cause injury.  This is a case where the trial had to take place because the prosecution did not accept your plea to recklessly causing injury.  Therefore, given the jury verdict I consider that whilst utilitarian value of your plea is substantial, the other complicating feature in all of this is that a trial had to take place in relation to the sexual offences.

10Further, as regards this incident, there was no contest on the underlying facts and the dispute between the parties in my opinion did not add any meaningful time to the trial proceedings in this case.  I also accept the plea you entered was indicative of remorse, reflected by the answers in your record of interview that I just referred to and that your plea indicated an intention to facilitate the course of justice.

11Ordinarily this type of incident between two brothers would in my opinion be unlikely to come to the attention of the police and the courts.  This incident has proceeded in the way that it has because of its connection to the sexual offence allegations.  I accept the submission of Mr Ralph that the offence was unplanned, spontaneous and of short duration.  I accept it is far from the high-end example of a recklessly causing injury offence.  It is difficult for me to put it into a category in these circumstances.  And as I have already observed it is unusual for this court to be dealing with an offence such as this.

12However, I also accept the prosecution's submission that to choke someone to unconsciousness or blackout is a serious violent act and is inherently dangerous. The potential for a very significant injury existed.  The violence was not justified and you acted out of uncontrolled anger.  Additionally, I am required to have regard to the impact on the victim which in this case is significant.  The victim impact statement makes it clear that the assault has had a serious and lasting impact on your younger brother.  He describes it as, 'the scariest thing that has happened in his life' and that he has become petrified of you as a result and that he does not like physical contact with his parents as a result of the assault.  So, the impact on your younger brother is an important matter in deciding the sentence in this case.

13Just briefly turning to your personal circumstances. You went to primary school at a catholic school in Caroline Springs.  You then went to a catholic college until Year 10.  You then went to school in Sydenham for Years 11 and 12, where you completed your VCE.  At the time you finished school in 2013 you were working at the local butcher shop as a clean-up kid.  In March 2014, you started an apprenticeship at that butcher shop which you finished in 2017/2018.  You left the butcher shop in 2018 and you have worked for cold storage company since then including through the pandemic and waiting for these criminal matters to conclude.

14You became a warehouse supervisor in 2020, you are now responsible for a team of 15 labourers and forklift drivers.  You earn $1,200 a week.

15Turning to the issue of delay. It is three and a half years since you were interviewed by the police when this allegation was put to you.  You consented to a no contact intervention order on 20 August 2019, the charges were initiated in January 2020.  You have been on bail since that time and you have complied with the terms of the intervention order since that time.

16If not for the trial on the now discontinued sex offences, this matter would have been finalised years ago.  I have said that the delay in this case has had impact on your mental health.  You had an appointment for a mental health care plan on 14 October 2022 with your local general practitioner and a document was tendered to that effect, and I accept you have suffered panic attacks relating to the stress of the criminal proceedings.  You gave evidence about ongoing panic attacks.

17The delay in this case and the effect it has had on your mental health operates as a significant extra-curial punishment in this case.  It is a substantial matter in deciding the sentence.  Additionally, the years that have passed give me the opportunity to see how you behaved since and you have no subsequent convictions, so the delay in this case also allows me to take a positive view of your prospects of rehabilitation which I will turn to now.

18You have no prior or subsequent convictions.  You were a young man when you committed these offences.  You maintained steady employment since leaving school.  You are not a drug user nor do you drink excessively.  You have complied with your bail conditions and the intervention order.  You have family support.  In my view you do have excellent prospects of rehabilitation.

19Based on the mitigating factors that I have attempted to outline which are set out in the written submissions, Mr Ralph submitted that I should place you on an adjourned undertaking without conviction which he submitted could involve special conditions including a mental health care plan and some financial contribution to the court fund or to charity.

20The prosecution submitted there is no utility in such a disposition and the serious features of the offence render such an order insufficient to adequately deter, denounce and punish the offending.

21The prosecution submitted that the issue of non-conviction or conviction was a matter open to me, based on the factors in Section 8 of the Sentencing Act. But the prosecution submitted I should impose a fine in this case. Section 8 of the Sentencing Act provides that in exercising my discretion of whether or not to record a conviction, I must have regard to all of the circumstances of the case including the nature of the offence, the character and past history of the offender and the impact of recording a conviction on the offender's economic or social well-being or on his or her employment prospects.  

22In all the circumstances of this case, and assessing the matters set out in Section 8, I have decided not to impose a conviction in this case.

23Finally, that leaves the issue of a fine or an adjourned undertaking.  I have given this matter some consideration and balancing the serious aspects of the offence against the mitigating factors, I have decided that a fine without conviction is the appropriate order.  That fine is heavily discounted to reflect what I regard as the very significant extra-curial punishment involved in the delay in this case and the experience of going through a very stressful interview with the police and then the very stressful experience of the trial that took place in this case.

24In the end, I cannot see the point of leaving this matter open for a further period of time.  It seems to me a fine recognises the impact on the victim in relation to this offence and the serious aspects of the offence.  So, the penalty that I impose is a fine without conviction of $500 in this case. In those circumstances a s 6AAA declaration is not required.

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