Kennett v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0143

CHRIS KENNETT	Applicant
v
THE KING	Respondent

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JUDGES:	KENNEDY JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	8 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 306
JUDGMENT APPEALED FROM:	[2023] VCC 1254 (Judge Carlin)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Leave to appeal – Sentence – Attempted armed robbery – Total effective sentence of 2 years and 8 months’ imprisonment with non-parole period of 22 months’ imprisonment – Whether judge erred in considering applicant’s cognitive functioning – No error – No reasonable prospect of reduction in sentence – Leave to appeal refused.

Criminal Procedure Act 2009, s 280(1).

Rule v The Queen [2022] VSCA 162, applied; R v Verdins (2007) 16 VR 269, Muldrock v The Queen (2011) 244 CLR 120, considered.

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Counsel for written submissions
Applicant:		Mr N Howard
Respondent:		Ms A Moran
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KENNEDY JA:

On 19 June 2023 the applicant, Chris Kennett, pleaded guilty to one charge of attempted armed robbery. Following a plea hearing on 19 July and 20 July 2023, the applicant was sentenced in the County Court on 20 July 2023 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Attempted armed robbery[1]	20 years’ imprisonment	2 years and 8 months’ imprisonment	N/A
Total Effective Sentence:		2 years and 8 months’ imprisonment
Non-Parole Period:		1 year and 10 months
Pre-sentence Detention Declared:		Nil
Section 6AAA Statement:		Total Effective Sentence 4 years Non Parole-Period 3 years
Other Relevant Orders: 1. Forfeiture order. 2. Destruction order.

[1]Contrary to Crimes Act 1958, ss 75A, 321M.

The applicant seeks leave to appeal against sentence on the following proposed ground:
Ground 1.The sentencing judge erred in considering the applicant’s cognitive functioning.
For the reasons that follow, leave to appeal will be refused.

Circumstances of offending[2]

[2]DPP v Kennett [2023] VSC 1254, [1]–[7], [10] (‘Sentencing Reasons’).

On 12 November 2021, at about 5:50 pm, a pharmacist was closing down his pharmacy and completing some paperwork. He was by himself and had closed the front roller shutter halfway down to stop customers from entering. The roller door was the only access in or out of the premises.
The pharmacist noticed the applicant enter the store and approach the counter. He told the applicant that the shop was closed. The applicant produced a plastic bag, placed it on the counter and told him, ‘Give me all your Valiums, temaz, benzos into this bag’. The applicant raised his arm and the pharmacist could see something that appeared to be metal protruding from the applicant’s right hand. The applicant said to him, ‘You better not call the police [and] I have a blade’.
The pharmacist activated a silent alarm under the desk before getting up from his seat to get the drugs that the applicant had requested. He retrieved several small bottles of diazepam and walked back to the counter, putting them down in front of the applicant.
As the pharmacist was going to get more drugs the applicant made a demand for cash. The applicant told him that he wanted all the cash and that he should get it within 10 seconds. The pharmacist was afraid that the applicant might stab him, and so he grabbed a small stool, returned to the counter, and started to strike the applicant to the head and body with the stool. He first struck the applicant from the other side of the counter and then moved around and continued trying to strike the applicant, causing the applicant’s sunglasses to fall onto the ground.
The applicant also started bleeding from his head. He placed his hands up, trying to stop the stool from hitting him as he moved backwards to the front door of the pharmacy. The applicant got out the door by ducking back under the roller door and ran along the street towards a car.
The pharmacist chased the applicant as he ran towards the car. The car was about 50 metres away and as the applicant got into it he yelled out, ‘Go, go, go’. The car then sped off down the street. The pharmacist lost his footing while he was chasing the applicant and stumbled into a nearby fence. A witness observed that, shortly afterwards, the pharmacist was ‘visibly shaken up’.

Sentencing reasons

The judge recorded that the applicant was 40 years old at the time of sentence, and that he lived by himself in a caravan park in East Murchison. The applicant’s parents separated when he was very young, and he became a carer to his mother when he was a teenager. He attended school up until Year 9 and worked in various low-skill manual labour roles, but had not worked since 2018 due to a car accident.[3]
[3]Ibid [21]–[22], [25]–[26], [28].
The applicant has a 10-year-old daughter who now lives with her mother. He previously had full custody of his daughter, however his unemployment, alcohol and drug use following the 2018 accident meant he was unable to provide adequate care. He has some contact with his father and siblings, and has a good relationship with his paternal grandparents.[4]
[4]Ibid [29]–[32].
The applicant had a significant history of alcohol and drug use. It was accepted by the applicant’s counsel that he had used alcohol and drugs heavily in recent years, including at the time of offending. The applicant told clinical neuropsychologist, Dr Harriet Downing, that he misused prescription medications, including benzodiazepines (in particular Valium and Xanax) and opiates (in particular Codeine and Nurofen Plus). He said that he overdosed from Codeine and Xanax in 2006, that he stopped abusing opiates sometime after that, and that he last misused benzodiazepines more than five years ago. However the judge considered that this was doubtful, given that these drugs were the target of his offending.[5]
[5]Ibid [35]–[36], [38].
The judge recorded that the applicant had a long criminal history, and considered that his offending was consistent with someone with a long-standing drug and alcohol problem. The offences range from minor shop thefts to serious convictions in 2011 for armed robbery, two charges of attempted armed robbery and attempted theft. He had breached all his corrections orders as well as a suspended sentence. However, the judge recorded that he did not appear before any court between 2014 and 2019, which coincided with a period of stability when he was living with his grandparents and had care of his daughter. He had also completed a voluntary admission for drug and alcohol treatment, and had engaged in counselling with an alcohol and drug social worker.[6]
[6]Ibid [40]–[42], [44]–[45].
The judge next turned to the objective gravity of the offending. She considered that the offence involved ‘some planning’; that he had disguised himself and that the pharmacist was in the process of closing up and was likely to be on his own and defenceless (in other words a ‘soft target’). She considered that this was a ‘well-advanced attempt’ and ultimately considered that the offending fell ‘at least in the mid-range of seriousness.’[7]
[7]Ibid [48]–[49], [51].
The judge then assessed the applicant’s moral culpability, having regard to the reports of clinical psychologist, Ms Carla Lechner (who prepared a psychological report dated 1 February 2023) and Dr Downing (who prepared a neuropsychological report dated 26 June 2023).[8]
[8]Ibid [19].
She noted that the applicant had told Ms Lechner:
It was just stupid. Most of that night me and a couple of mates were driving around Shepparton trying to get ice. Got some in the morning, got a call from a Turkish woman I’d once slept with, said she was being beaten by some men, so we rushed down and I forgot to get my methadone. Got her, packed the car with her stuff and realised it was after 5.30 and I had no way of getting my methadone and would go without Friday, Saturday and Sunday. And the ice was not working to help with the pain.[9]
[9]Ibid [52].
Ms Lechner also recorded that the applicant told her that he was feeling pain and weakness in his leg and that he feared it would worsen without medication, hence he ‘thought [he would] get some Valium’.[10]
[10]Ibid [53].
The judge considered the applicant’s explanation to be ‘implausible’, stating:
I find [the applicant’s] explanation to be implausible both as to why [he] attended Melbourne in the first place and also why [he] attempted the armed robbery. I accept that [the applicant] was motivated by drug addiction, but the drugs [the applicant was] seeking were not for pain relief and [the applicant was] seeking far more than was necessary to counter any acute withdrawal symptoms or immediate desires. Further, [the applicant] not only sought drugs, [he] also asked for ‘all the cash’ to be given to [him] within ten seconds.[11]
[11]Ibid [54].
Although Ms Lechner also recorded that the applicant ‘regret[ted]’ what he had done and that he ‘apologised at the time’ , the judge did not accept this account, as it was inconsistent with that of the victim.[12]
[12]Ibid [55]–[56].
Turning to Dr Downing’s report, she said that the applicant appeared to function ‘at a level consistent with someone with an intellectual disability.’[13] However, she also stated that:
[D]ue to his age, the quality of available information and the presence of other factors that might impact his cognition and daily functioning, it was difficult to provide diagnostic certainty.[14]
[13]Ibid [57].
[14]Ibid.
Dr Downing also expressed the view that:
[The applicant’s] cognition was overall more likely to have been a moderating factor with [his] substance use problems being a mediating factor for the offending.[15]
[15]Ibid [58].
The judge noted that Dr Downing said that where the applicant’s cognitive functioning ‘might be relevant’ was in his poor problem solving. Dr Downing gave the example of the applicant reporting to having seen his GP to request medication prior to the offending, and being unable to generate alternative options to meet his needs other than the offending behaviour.[16] However, the judge considered that:
Dr Downing’s last statement as to the relevance of [the applicant’s] poor problem solving, which was only expressed as a possibility in any event, was based on her acceptance of [the applicant’s] explanation for the offending, which I have already said I do not accept except in so far as [the applicant was] seeking drugs.[17]
[16]Ibid [59].
[17]Ibid [60].
The judge also referred to Ms Lechner’s opinion that the applicant had:
Symptoms of alcohol-use disorder, opiate-use disorder managed by a replacement program, and major depressive disorder that has arisen in the setting of a history of childhood hardship, limited familial or social networks and genuine cognitive limitations.[18]
[18]Ibid [61].
In terms of the relationship between the applicant’s psychological profile and the offending, Ms Lechner also said that he had:
A limited range of adaptive coping skills and under pressure is likely to act impulsively without considering the long-term consequences [and also that] it would appear that his already limited problem solving and decision-making skills were further adversely impacted by the ingestion of ice. In the face of not being able to access his prescribed medication for the weekend and already feeling the impact of withdrawal, he attempted to access painkilling medication in a totally inappropriate manner.[19]
[19]Ibid [62].
The judge considered that:
Like Dr Downing, Ms Lechner’s opinion, in so far as it touched upon [the applicant’s] moral culpability, was predicated upon an acceptance of [his] explanation for [his] behaviour. As I have already said, [the applicant was] not seeking painkilling medication, as Ms Lechner said [he was], [he was] seeking large quantities of benzodiazepines, as well as cash. Further, for reasons already explained I do not consider that [the applicant’s] offending was impulsive.[20]
[20]Ibid [63].
In the judge’s view, there was ‘no doubt’ the applicant understood what he was doing was ‘very wrong’. This was evidenced by the fact that, shortly after the offending, he attended hospital and pretended he had sustained his injuries in a pushbike accident. Further, when he was arrested and interviewed four months after the offending, he denied the offending until it was no longer possible to do so and then claimed to have been so affected by drugs that he had no memory of it. This was ‘completely inconsistent’ with the accounts later given to Ms Lechner and Dr Downing.[21]
[21]Ibid [64].
The judge considered that the applicant’s subsequent explanation to Ms Lechner was an ‘attempt to minimise [his] offending’ because he was ‘well aware of just how bad it was’. Dr Downing said that the applicant ‘showed an awareness that the offending behaviour was wrong and ways in which it might have impacted the victim’, which Dr Downing said pointed to a degree of moral reasoning.[22]
[22]Ibid [65].
The judge noted that the applicant’s counsel had not argued that his moral culpability was lessened because of any mental impairment (R v Verdins (‘Verdins’)[23] limb 1), but had argued that it was reduced because of his background of social disadvantage and the general (not the specific) principle in Bugmy v The Queen.[24] She accepted that there were difficulties in the applicant’s childhood and took them into account in a general sense, but did not accept that these difficulties reduced his moral culpability. The judge considered the applicant’s moral culpability for the offending to be high.[25]
[23](2007) 16 VR 269; [2007] VSCA 102.
[24](2013) 249 CLR 571; [2013] HCA 37.
[25]Sentencing Reasons, [66]–[67].
The judge recorded that the victim has suffered long-term emotional consequences from the offending.[26] She also considered that the sentencing statistics were of limited assistance and instead had regard to sentences imposed in the comparable cases involving armed robberies on soft targets in the cases of R v Lee (‘Lee’)[27] and Singh v The Queen (‘Singh’).[28]
[26]Ibid [71].
[27][2006] VSCA 80.
[28][2011] VSCA 333; ibid [74], [76]–[77].
The judge considered that the applicant was entitled to a significant discount by reason of the fact that he pleaded guilty and at a very early stage. While she considered that the applicant’s statements of remorse to Ms Lechner and Dr Downing were ‘self-serving’, she was prepared to accept that his guilty plea was accompanied by remorse, entitling him to an even greater discount and reflecting favourably on prospects for rehabilitation.[29]
[29]Sentencing Reasons, [79]–[80].
Turning to the applicant’s character and risk of reoffending, the judge expressed ‘guarded optimism’ about his future, but stated that she intended to allow for the continuation of the rehabilitation he recently started by the setting of as low a non-parole period as possible, consonant with the seriousness of the crime.[30]
[30]Ibid [84].
The judge accepted that the applicant was being imprisoned at a time of uncertainty (due to the COVID-19 pandemic) and that restrictions may be reimposed with the consequence that prison would be more onerous.[31]
[31]Ibid [85].
Finally, the judge observed that the authorities make clear that in cases of armed robberies or attempted armed robberies against ‘soft targets’ (including pharmacies), the principles of general deterrence and denunciation are particularly important.[32] The applicant’s criminal history also made specific deterrence an important sentencing consideration.[33]
[32]Ibid [87]–[89], referring to Lee [2006] VSCA 80, [24] (Vincent JA) and Singh [2011] VSCA 333.
[33]Sentencing Reasons, [87], [90].
The judge recorded the applicant’s submission that the principles of general deterrence and specific deterrence should be moderated due to the applicant’s cognitive limitations and psychological profile and that the applicant relied on Verdins limbs 3 and 4.[34] She said:
I have already dealt with these arguments in the context of [the applicant’s] moral culpability. Suffice to say, just as I am not satisfied that [the applicant’s] moral culpability is lessened by these factors, I am also not satisfied that the principles of general or specific deterrence should be moderated. Even if I am wrong, to the extent there should be any lessening of those principles, the need for community protection would be correspondingly increased.[35]
[34]Ibid [91].
[35]Ibid.
The judge concluded that the offending was ‘too serious’ and the mitigating factors not significant enough to warrant anything other than a term of imprisonment with a head sentence and non-parole period.[36]
[36]Ibid [92].

Proposed ground 1

The applicant submitted that, rather than (simply) rejecting the applicant’s reported explanation for his offending, the judge was required to assess the nature and extent of the applicant’s impairment of mental functioning. The applicant submitted that the question of a causal connection is less likely to arise in circumstances where an offender has a cognitive impairment, citing the decision of the High Court in Muldrock v The Queen (‘Muldrock’).[37]
[37](2011) 244 CLR 120, 139 [54] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2011] HCA 39.
The applicant emphasised that, whatever the cause, be it intellectual disability or acquired brain injury, the applicant has a Full-Scale Intelligence Quotient (‘IQ’) of 67, falling into the ‘extremely low range’ for verbal comprehension, abstract reasoning, and for conceptual, practical and social skills. His scores also placed him into the borderline range for nonverbal logical sequential reasoning.
The applicant contended that the principles in Muldrock and the first, third and fourth limb of Verdins were enlivened. Further, that the judge erred in failing to characterise the opinions stated in the reports of Ms Lechner and Dr Downing as matters affecting, and to a degree reducing, the applicant’s moral culpability.
While the applicant conceded that general and specific deterrence had work to do in the instinctive synthesis, he also submitted that these purposes ought to have been moderated.

Consideration

It may be accepted that, with an IQ score of 67, the applicant had a cognitive impairment. However, the judge made express reference to the applicant’s ‘cognitive limitations’, as well as the two reports cited above.[38]
[38]Eg, Sentencing Reasons, [61], [85], [91].
The applicant did not actually make a submission to the judge that his moral culpability was lessened because of any mental impairment in accordance with Verdins limb 1.[39] Despite this, the judge focused on the relationship between the cognitive impairment and the offending behaviour in order to consider whether there was any resulting impact on the applicant’s moral culpability.
[39]Ibid [66].
The applicant now seeks to challenge the judge’s approach. In essence, he suggests that each of limbs 1, 3 and 4 of Verdins are (automatically) ‘enlivened’ on the basis of the decision in Muldrock.
In Muldrock the Court stated:
One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this:[40]
General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.
In the same case, Lush J explained the reason for the principle in this way:[41]
[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.
The principle is well recognised.[42] It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence.[43] Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.[44]
[40]R v Mooney (unreported, Court of Criminal Appeal (Vic), 21 June 1978) at 5, cited in R v Anderson [1981] VR 155 at 160.
[41]R v Mooney (unreported, Court of Criminal Appeal (Vic), 21 June 1978) at 8, cited in R v Anderson [1981] VR 155 at 160–161.
[42]Veen v The Queen [No 2] (1988) 164 CLR 465 at 476–477. See also R v Anderson [1981] VR 155; R v Scognamiglio (1991) 56 A Crim R 81; R v Letteri (unreported, Court of Criminal Appeal (NSW), No 60407 of 1991, 18 March 1992); R v Engert (1995) 84 A Crim R 67; R v Wright (1997) 93 A Crim R 48.
[43]See R v Engert (1995) 84 A Crim R 67 at 71.
[44](2011) 244 CLR 120, 138–9 [53]–[54] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2011] HCA 39 (citations in original).

However, the Court also expressly noted that there was unchallenged evidence of the relevant causal relation in that particular case.[45]
[45]Ibid 139 [55] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
As this Court explained in Rule v The Queen (‘Rule’),[46] two further points also warrant emphasis.
[46][2022] VSCA 162.
First, the extent an intellectual impairment will be relevant to a sentence depends on a variety of factors, including, critically, an assessment of how that mental status contributed to the offending. Although issues of causation are ‘less likely to arise’ in sentencing an intellectually impaired offender, this is because the ability of the offender to reason as to the wrongfulness of the conduct will often be compromised. Ultimately, however, the issue of causation is still one of fact.[47]
[47]Ibid [28] (Priest and Niall JJA), citing Brown v The Queen [2020] VSCA 212, [61], [69] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA).
Second, the application of the principles explained in both Muldrock and Verdins do not dictate an outcome and do not swamp other considerations, including community protection.[48]
[48]Ibid [29] (Priest and Niall JJA).
In this case, the judge made a number of important factual findings. Thus, she rejected the applicant’s explanation that he offended because he did not have methadone and was in pain. She rather considered that the offending was caused by the applicant’s drug addiction, and that the drugs he was seeking were not for pain relief. She also identified that, insofar as Dr Downing and Ms Lechner identified any connection between the impairment and the offending, their opinions were premised on an acceptance of the applicant’s explanation for the offending (which she had rejected). The judge further found that there was no doubt that the applicant understood that what he was doing was ‘very wrong’.
The applicant has not sought to challenge these findings. However, given these critical findings, the judge was left with no evidence of a connection between the offending and the cognitive impairment that would reduce the applicant’s moral culpability, or render him a less appropriate vehicle for specific or general deterrence.
In all the circumstances, then, I am of the view that there should be no leave to appeal on the basis of proposed ground 1.
First, in the light of the unchallenged factual findings, it was well open for the judge to refuse to reduce the applicant’s moral culpability and, further to find that limbs 1, 3 and 4 of Verdins were not enlivened.
Second, the judge expressly found that, even if the principles of general or specific deterrence should be moderated by reference to the applicant’s impairment, the need for community protection would be correspondingly increased. She was entitled to take such a view given that the principles in both Muldrock and Verdins are not determinative. Consistent with Rule, she was entitled to find that the need for community protection would outweigh the application of those principles so as to avoid an inadequate sentence.
Finally, and in any event, I accept the respondent’s submission that the sentence imposed in this case was a very modest one, having regard to the objective seriousness of the offence, the applicant’s prior convictions and his age. Even if, then (contrary to the above) there was some error in the judge’s consideration of the applicant’s cognitive functioning, I do not consider that there is any reasonable prospect that this Court would reduce the total effective sentence or impose a sentence that is less severe.[49]
[49]Criminal Procedure Act 2009, s 280(1).

Conclusion

The application for leave to appeal must be refused.
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[2023] VSCA 306

8 December 2023