R v Kennewell

[2019] ACTSC 125

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Kennewell

Citation:

[2019] ACTSC 125

Hearing Date:

21 January 2019

Decision Date:

25 January 2019

Before:

Burns J

Decision:

[32]-[34]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflicting grievous bodily harm – plea of guilty – need for specific deterrence – good prospects for rehabilitation

Legislation Cited:

Crimes Act 1900 (ACT) s 20

Parties:

The Queen (Crown)

Troy Michael Kennewell (Offender)

Representation:

Counsel

A Williamson (Crown)

G Mansfield (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Aboriginal Legal Service (Offender)

File Numbers:

SCC 235 of 2018; SCC 236 of 2018

BURNS J

1. Mr Kennewell, you appear before me today for sentence with respect to an offence of recklessly inflicting grievous bodily harm, contrary to s 20 of the Crimes Act 1900 (ACT), which is punishable by 13 years' imprisonment. You pleaded guilty to this offence after the matter had been committed for trial, but before any trial date had been set.

2.        The facts are that at about 9.30 pm on 21 October 2017 you, in company with your girlfriend, attended a friend's party in Kambah. At about 11 pm you and your girlfriend began arguing and left the party. Both you and your girlfriend walked south on Mason Street, Kambah and left into Kingsmill Street, Kambah where you continued to argue loudly.

3.        At about 11.10 pm the victim in this matter, ND, heard the argument and specifically he heard a female screaming. He approached his fence and looked over it. He saw that your girlfriend appeared distressed and frightened as the argument intensified. ND jumped over the fence and approached the two of you as he was concerned for your girlfriend's safety. You had a knife in your hand and said to ND, “She fucken cheated on me.” The victim said, “So what?” You took offence to this comment and proceeded to stab the victim three times to the shoulder, abdomen and wrist. You then ran away from the area with your girlfriend running after you.

4.        The victim at first believed he had been punched, however, upon looking down and seeing blood on his shoulder, he realised he had been stabbed. He collapsed and fell to the ground, feeling as though he was going to die.

5.        At 11.21 pm police arrived at the scene, and along with other members of the public, rendered first aid to the victim until ACT Ambulance officers arrived. The victim was bleeding profusely from the shoulder area. Ambulance officers conveyed him to hospital where an internal trauma code was activated by the emergency department and the victim underwent immediate surgery.

6.        At 11.24 pm police observed a female running from Kingsmill Street, Kambah and engaged in a short foot pursuit before catching up to the female. The female was identified as your girlfriend. Police observed blood on her hands. She was conveyed to the police station and later released. Police established a crime scene at the location of the stabbing and recovered a number of items including a blue bag and a knife. Inside the bag was a wallet which contained your New South Wales driver’s licence. The wallet contained a number of other cards in your name.

7.        At 10.40 am on 22 October 2017 you attended Tuggeranong Police Station, along with your girlfriend, where you were formally arrested. You did not participate in an interview. An AFP forensic member attended and took your DNA and fingerprints, as well as photographs of you. You were released pending further investigations.

8.        At 3.20 pm on 23 October 2017 you again attended the Tuggeranong Police Station to request the return of your wallet. You were arrested and charged with the matter now before the Court.

9.        On 24 October 2017, the victim was discharged from hospital with a referral to the Canberra Hospital Fracture Outpatient Clinic for an occupational therapist that specialises in hand therapy, and to his general practitioner.

10.      A medical report prepared by Dr Jane Van Diemen, dated 24 January 2018, describes the injuries inflicted to the victim's abdomen, shoulder and forearm as likely being sharp force (stab) wounds due to contact with a sharp surface such as a knife or a blade.

11.      More specifically, the injuries were identified as a right lower abdominal stab wound resulting in damage to the anterior rectus sheath and rectus muscle, which required surgical exploration and repair in the form of diagnostic therapy; a left shoulder incised wound resulting in severed left deltoid muscle, which required surgical repair and a prolonged period of immobilisation for at least six weeks, ongoing rehabilitation and physiotherapy; and, a left forearm incised wound resulting in complete transection of the left extensor ulnaris tendon, which required surgical repair of the transection injury and a prolonged and intensive period of rehabilitation and hand therapy.

12.      According to Dr Van Diemen's report the victim will have permanent and longstanding consequences from his injuries, including scarring as a result of the injuries and treatment required for those injuries, a possibility of ongoing pain and discomfort; and, a possibility of ongoing psychological conditions related to the experience of a traumatic event.

13.      You were, as I have said, arrested on 23 October 2017 and you were granted bail the following day. You were subsequently imprisoned for offences committed in New South Wales whilst on that bail. Upon your release from prison in New South Wales on 15 July 2018 you were immediately arrested and extradited back to the ACT, and you have remained in custody ever since that time.

14.      A Victim Impact Statement was provided by ND which speaks of significant ongoing effects as a result of the attack by you on him. It is likely that he will continue to suffer for some time as a consequence of his injuries.

15.      [Redacted]. Subsequent to the present offence, as I have already indicated, and whilst you were on bail, you committed a further series of offences of violence in New South Wales, which also involved stabbing another person with a knife. You were sentenced to a total period of 14 months' imprisonment with seven months' non-parole. You were arrested upon your release from prison on 15 July 2018 and extradited to the ACT.

16.      The relevance of this subsequent offence is that it demonstrates that the present offence was not an isolated or one-off incident. In addition, there is undisputed evidence before me that you were found in possession of a shiv or homemade implement adapted for stabbing whilst in the AMC after extradition from New South Wales. These matters speak of the need for specific deterrence in sentencing.

17.      The Crown made a number of submissions relevant to the objective seriousness of the present offence. I accept the following matters. In terms of the nature of the attack, it was brief but quite vicious. It was not, perhaps, as vicious as some of the attacks that are seen with respect to offences of this nature but it was certainly a serious example of this type of offending. The attack involved three discrete stabbing motions, each one causing a separate injury. Each of those separate injuries constituted grievous bodily harm.

18.      The Crown submitted that it was an aggravating circumstance attending the commission of this offence that the injuries inflicted substantially exceeded what was the minimum required to constitute grievous bodily harm. I would put the matter somewhat differently in that one of the important considerations for sentencing for this type of offence is the nature of the injury inflicted.

19.      It, of course, goes without saying that such an injury must be grievous bodily harm because that is what is required by the section, but in determining where the appropriate sentence falls within the range of sentences available for offences of this type it is important for the Court to consider the precise nature of the harm inflicted upon the victim.

20.      Again, in my opinion, this was a serious example of the infliction of grievous bodily harm. You used a knife in the course of this offence, which is a matter of significant aggravation. I also take into account the degree of harm that has been inflicted upon the victim as demonstrated by the Victim Impact Statement which was tendered.

21.      It was submitted that the offence was, to some extent, provoked. I do not accept that submission. In my opinion there is nothing that occurred prior to you stabbing the victim which can be described as, in any way provocation, on his behalf. I am satisfied that this offence was entirely unprovoked. I would assess this offence as being in the mid‑range of such offences.

22.      You are 20 years old and you are an Indigenous man born and raised in Cowra, New South Wales. The present offence occurred just after you turned 19 years old and is, in effect, your first offence [redacted]. You told the author of the Pre‑Sentence Report that you have four siblings and that your upbringing was stable and nurturing. You enjoy good relationships with your family and they have maintained contact with you since you have been incarcerated. This is a significant positive circumstances relative to your prospects for rehabilitation.

23.      I note that a slightly different version of your childhood was provided by your counsel in submissions before me. It was submitted that you had been subject to a degree of instability, with regard to your residence, after your mother and father separated when you were still very young, and your mother re-partnered when you were eight years old. It was said that at age 13 years you moved to live with your grandmother due to conflict in your family home. By Year 10 you were getting into trouble at school because of your behaviour. These issues arose not long after your mother left Cowra and moved to Young. You did not initially accompany her because you felt an obligation to remain with your grandmother.

24.      You left school and obtained employment for about seven or eight months. Whilst not working you would meet with friends and consume alcohol. When you were 15 years old you moved to Young to be with your mother again. It was at this time that you commenced carrying a knife, you say, for self-protection.

25.      At the time of this offence you were in the company of your partner who lived in Canberra. You frequently came to Canberra at that time to visit her. This relationship was characterised by arguments between the two of you and alcohol consumption.

26.      On the evening of the offence you were intoxicated and arguing with your partner. You recall the victim yelling something and you say that you now do not recall using the knife. You ran off after the offence and acknowledged that you knew that you had done something wrong. You voluntarily attended the police station the next day and also the day after that, at which latter time you were arrested. You were granted bail and returned to Young. Subsequently, as I have noted, you committed further offences in New South Wales which led to you being imprisoned.

27.      Your counsel submitted that you were depressed after you returned to Young from the ACT and commenced drinking alcohol before the New South Wales offences. Your counsel submitted that you consulted your GP about your depression, your quickness to anger and your feelings of stress regarding the present charge.

28.      I propose to proceed on the basis of the matters that were put in submissions by your counsel. It does not appear to me that they differ significantly from the description of your subjective features given by the author of the Pre-Sentence Report but, in any event, I will accept those matters which were put by your counsel as they were not subject to any objection or contradiction by the Crown.

29.      You are apparently in good health and are said to have a positive attitude. You have completed an anger management course in the Alexander Maconochie Centre (AMC). You have also sought out a drug and alcohol course within that institution but you have not, at this time, been able to undertake such a course. I understand that you have also commenced a vocational course or courses within the AMC. You are said to have employment available to you in New South Wales through your mother's partner after you are released from custody.

30.      The author of the Pre-Sentence Report considered that your prospects for rehabilitation would be enhanced by addressing anger management, drug and alcohol issues and employment. In my opinion, you have reasonable to good prospects of rehabilitation if you address the issues identified by the author of the Pre‑Sentence Report. In addition, it is vital that you cease carrying weapons and, in particular, knives. No law-abiding citizen in this country, not associating with criminals or engaging in criminal conduct, needs to carry a knife for self-protection. In your case you have now used a knife on two occasions against others, not in self-defence but offensively.

31.      Notwithstanding your age and your good prospects for rehabilitation, any sentence which I impose must also be such as to make it clear that the use of knives to inflict serious harm on others will be met with stern punishment. Nothing less than full-time imprisonment would be adequate to address the requirements of sentencing.

32.      I take into account the need to determine a starting point for the sentence which I impose that will address the needs of totality, taking into account the period of time that you have spent in custody in New South Wales and also on remand prior to sentence in this Court. My starting point is three years and 10 months' imprisonment. I will reduce that by nine months to three years and one month to reflect your plea of guilty.

33.      Mr Kennewell, you are convicted and sentenced to three years and one month imprisonment commencing on 16 February 2018 and expiring on 15 March 2021.

34.      I will set a non-parole period, bearing in mind your age and your prospects for rehabilitation, of 18 months, commencing on 16 February 2018 and expiring on 15 August 2019.

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns.

Associate:

Date: