DPP v Kenny [2022] VCC 471 (12 April 2022)

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

DECLAN KENNY

JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2022
DATE OF SENTENCE:	12 April 2022
CASE MAY BE CITED AS:	DPP v Kenny
MEDIUM NEUTRAL CITATION:	[2022] VCC 471

Catchwords: Plea of guilty - one charge intentionally cause injury - circumstances of COVID-19 pandemic
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Sentence: Total effective sentence of 16 months’ imprisonment and a 2 year Community Corrections Order.

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecutions

For the Accused	Mr P. Morrissey S.C. Mr G. Nikolovski	Marshall Jovanovska Ralph

1 Stuart Kane is the brother of Peter Kane, the victim in this case. As will become clear, Peter Kane was stabbed in his home in an unprovoked attack on 17 June 2020. Peter Kane, for reasons unconnected to this attack, subsequently passed away, so it fell to his brother Stuart to describe the effect of the attack on him at the hearing of this case. Pete Kane, he says, suffered from nightmares after the attack on him; it affected him emotionally and he would sometimes leave home to stay with friends because he was scared of being attacked in his house.

2 Declan Kenny, you have pleaded guilty to one charge of causing injury intentionally, the maximum penalty for which is 10 years’ imprisonment.

3 The circumstances of what you did are set out in the Summary of Prosecution Opening, dated 30 March 2022. This became Exhibit A on the plea, and it forms part of, and is attached to these reasons. I will not repeat it all here but summarise just some parts of it.

4 On 16 June 2020 you were unemployed and homeless, living in the Prahran area. You met Peter Kane. He was 40 and on a disability pension. He had a number of health issues. You asked him if he smoked. Mr Kane said that he did and invited you back to his unit to smoke. This was the first time you had met.

5 After you had smoked together, Mr Kane thought you looked tried and allowed you to sleep on his couch. During the night, while you slept, Mr Kane’s friend Deeq Kamill, came over. Mr Kamill and Mr Kane then set about cleaning Mr Kane’s unit. The cleaning went well into the night and into the next morning.

6 Just before 3am on 17 June 2020 Mr Kamill took a bag of rubbish outside. Mr Kane was mopping the floor and moved your bag so he could mop underneath it. Without warning and without saying a word, you got up and stabbed Mr Kane three times: in the back, in the right side of his ribs and in the back of his arm.

7 Mr Kane fell down. He said to you, 'Please, no more', and then got up and ran outside through the front door.

8 As he ran outside, Mr Kamill heard him yell, 'I have been stabbed'. Mr Kamill saw you standing in the doorway with a black-handled steak knife in your hand. He assisted Mr Kane to walk away from the unit down Malvern Road; emergency services were called.

9 The police and ambulance arrived soon after. Paramedics assessed and treated Mr Kane’s wounds before taking him to the Alfred Hospital.

10 I pause here to note the detail of Mr Kane’s injuries. By the time he was admitted to the Alfred Hospital he was hypoxic, meaning his blood oxygen level was unusually low. Three stab wounds were found:

11 He suffered a laceration to the right lower lung and a collapsed lung in the same side. That required treatment with an intercostal catheter, after which his condition did improve. Ultimately Mr Kane chose to discharge himself, against medical advice, on 19 June 2020, though the next day he would return for some more treatment.

12 The police arrived at the unit sometime after 3 am and arrested you; they found a silver steak knife in the right-hand pocket of your vest and noticed that you had a small cut to your left index finger.

13 You were taken back to the Prahran police station and interviewed. Initially you stayed silent; you were then assessed and found unfit for interview.

15 I note that you were, at this time, on a Community Corrections Order (CCO) that had been breached and varied in the Magistrates’ Court in April 2020.

16 A committal was ultimately conducted, and the only cross-examination was of the medical expert. That was on 22 February 2021, at which time you were granted bail, a condition of which was to reside at The Cottage, a residential rehabilitation program in Shepparton.

17 Afterwards, there was a case conference on 19 November 2021 in this court. Subsequently, in February 2022, the Director of Public Prosecutions accepted a plea to the charge of intentionally causing injury. At the same hearing, for reasons that I will come to later in this sentence, your bail was revoked by consent. You then commenced the second chapter of your time in custody on this charge.

19 You are now 25 years old, you were 23 years old at the time of committing this offence. You were born in Kalgoorlie in Western Australia, but thereafter raised in Perth. Your parents separated when you were about seven. You and your sister stayed in your mother’s care. Contact with your father ceased in the context of some abusive behaviour on his part.

20 You completed up to Year 10 and then started a heavy-duty diesel mechanics apprenticeship, but you were terminated from that course after a year when you failed a number of drug screens. You worked on and off in a range of practical professions thereafter. Just over five years ago you moved away from your family in Perth to live a transient lifestyle in Victoria. Prior to this offending you were homeless for about eight months. You were living from one day to the next, unemployed, living in and around Prahran.

21 I must assess the nature and gravity of your offending. This is a grave example of the offences of its class. You used a knife. You used it repeatedly. You used it against a stranger who had only shown you kindness and hospitality by offering you a place to smoke and to sleep. I adopt your counsel’s description of the injury you caused as ‘significant and dangerous’. From the outside, there is a complete absence of logic for your attack on Mr Kane; there is simply no evidence of disharmony prior to your extraordinary attack on him.

22 The reasoning of the court in the case of Gommers v The Queen^[1] is equally applicable here:

'In our view, the seriousness of the offence of intentionally causing injury is not only to be gauged by the injuries caused, but by the manner of their infliction.[13] The applicant’s was a nasty and cruel act of gratuitous violence, which resulted in significant injury requiring surgical intervention'.

23 Although I note that in this case, the term 'surgical intervention' is probably not applicable.

24 There was no dispute on your plea about the objective seriousness of your offending. It was committed while you were subject to a CCO. The manner in which the injuries were inflicted, and the nature of those injuries, make the conclusion that this is objectively grave offending irresistible. On your plea your counsel did not resile from this assessment.

25 I am obliged to take into account the impact of your offending on your victim, who passed away for unconnected reasons prior to this hearing. Mr Kane’s voice was heard on this hearing through his brother, Mr Stuart Kane, and I have already quoted from his statement. Mr Stuart Kane writes that your attack on his brother caused him great distress in many ways. I have thought carefully about the effect on Mr Kane of what you did, and I take it into account in arriving at your sentence.

27 You have admitted a prior criminal history both in Victoria and in Western Australia. In Western Australia there are charges of assaulting a public officer and offences that appear to be, in the main, crimes of public disorder and dealt with in the main by suspended or community-based sentences and fines. That then continues in Victoria: from 2018 you were dealt with for assaulting a police officer. More serious charges emerge in the same year of unlawful assault and aggravated burglary. You were dealt with for the offence of possessing a controlled weapon without excuse in April 2020, just prior to this offending. In the main, your offences are consistent with someone with your history; that being disturbed mental health, drug use and getting into confrontations of varying seriousness in that context in public.

28 This appears to be the most serious offence against the person you have been dealt with for; it represents a significant escalation, but it does not arise against a background of repeated offences in the same category.

29 Turning now to matters in mitigation of your sentence. First your plea of guilty.

30 At any time, your plea would attract a significant discount on your sentence; but at the moment, when the administration of justice in Victoria has been so paralysed and so weighed down by the COVID-19 pandemic and where a very significant backlog of trials await hearing, your plea will attract an additional and significant benefit measured in units of time.

31 I make it very clear that were it not for this latter factor, I would have imposed a much more severe sentence.

32 I note that you did run a contested committal, but ultimately your case was resolved by the case conferencing system in this court, and a charge of a lower order than that which was originally charged was ultimately the subject of this resolution.

34 Psychological and psychiatric evidence was tendered on your plea. It fell into two broad categories; first, that which was obtained in 2018 in relation to a previous case. At that stage, the psychiatric opinion was that your disturbance of mind, resulting in symptoms of psychosis, was most likely a
drug-induced one, as opposed to one (I interpolate) that was pre-existing and organic.^[2] Accompanying this report was a report of a psychologist who made observations of your psychotic and delusional state; questions of fitness to plead were considered.

35 In the second category, and in the wake of your more recent offending, you were assessed by Dr Loretta Evans, neuropsychologist, and Dr Jacqueline Rakov, a psychiatrist. Both experts attempted to locate which problem came first, your psychotic symptoms or your drug use. A long history of your presentation for treatment for psychotic symptoms, and your addiction to a vast array of drugs and alcohol, was carefully considered. Early opinions that your symptoms were consistent with symptoms of schizophrenia (of a kind that was pre-existing) were, in the more recent reports, confirmed. In Dr Rakov’s opinion, you suffer from a substance use disorder, currently in remission in custody. You are also now diagnosed with schizophrenia, partially treated. In her opinion, given your now prolonged abstinence and the persistence of your symptoms and having regard to your background, Dr Rakov favours a diagnosis of schizophrenia over a
substance-induced disorder. She writes:

'Far from everyone that uses psychoactive substances becomes psychotic. And not everyone that experiences a substance-induced psychotic disorder goes on to experience psychotic symptoms in the prolonged absence of substances, as is the case for Mr. Kenny at present. This is fundamentally what differentiates, and supports, a diagnosis of schizophrenia compared to the substance-induced disorder previously attributed'.^[3]

36 Significantly, Dr Rakov also notes that schizophrenia is often a degenerative mental illness and, if untreated, can deepen in severity and duration. Dr Rakov also diagnosed a generalised anxiety disorder and, as I have said, a substance use disorder.

37 At the time of your offending, you had been given access to antipsychotic medication, but your use of that medication was inconsistent and overlaid with your use of methamphetamine. To be clear: your drug use does not directly reduce your culpability for what you did.

38 In the light of all the evidence, no Verdins submissions were made on your plea, which made sense given that it is clear you were heavily influenced by your methamphetamine use and addiction at the time. You had an untreated or undertreated serious mental illness, but you were also intoxicated.

39 That said, your diagnosis and the way it influenced how you were living at the time, which underpinned your use of illicit drugs, informs the sentencing process more generally. You were living on the street, couch surfing at best, increasingly addicted and paranoid. You were the victim of serious assault just three months before this event that required your hospitalisation. It was a lean and dangerous existence you were living. In this context, and to terrible effect, you carried a knife.

40 While your mental ill-health and your recent assault and injury give some context to you carrying a knife, no one will ever know what it was that triggered you to use it in the awful way that you did.

41 While not pleaded in the formal Verdins sense, your mental health history gives some context and texture to the events that from the outside seem so inexplicable; and reduce, to a degree, your moral culpability for what you did. These factors also underpin a conclusion that if your mental health is untreated or undertreated and if you use any amount of illicit substance (or alcohol), you might do something seriously dangerous.

43 Notably, statements that you have made about how you think about your drugtaking are quite different in the 2018 and 2022 reports. The original psychiatrist thought you minimised the role of drugs in your mental ill-health, but in 2022, to Dr Evans you say, ‘I have learned why and how to be clean’. You are now consistently treated with antipsychotic medication and appear to accept that you need such treatment indefinitely.

44 When you were released on bail, you complied with the condition to live in
The Cottage rehabilitation program in Shepparton, commencing 23 February 2021. You received a glowing letter four months later, on your completion of the formal program, that letter being dated 10 June 2021. You stayed there for several months longer after that, gradually stepping down into more and more time and activity in the community outside the formal program. However, by 14 December 2021 you were discharged from the program having used alcohol and being accused - although I make no finding about this - of hitting another resident at an Narcotics Anonymous meeting. It is concerning that even after such a lengthy period of highly successful rehabilitation, you can still be vulnerable to misusing alcohol. However, the time in The Cottage ought not be seen as a complete failure given the duration you spent there, submitting to regular urine screens and, by all accounts, becoming clean of the illicit drug use that had so gripped you previously.

45 Your mother, Elizabeth, gave evidence at your plea hearing. She told the court that the intelligent, loving and funny person she once knew has now re-emerged. Ms Kenny has recently moved to Victoria in order to support you on your eventual release. She spoke about doing something similar in 2018 that had initially been successful but had gone awry when she had left the state for a short period.

46 Ms Kenny gave evidence of her plans for you on your eventual release, including engaging professionals to support your mental health. Your grandmother and family friends also wrote affectionate and supportive letters tendered on your plea.

47 Your mother gave evidence of your seeking out ‘Narcotics Anonymous’ and ‘Alcoholics Anonymous’ meetings in custody and your attempts to start these meetings yourself when they were not available to you. You have realistic work ambitions post release.

48 All the evidence suggests that you were, at one stage, a person who was regarded as intelligent, funny, interested in music and in literature, and that you could be so again. You remain the beneficiary of your mother’s practical support and her enduring affection. You now have a psychiatric diagnosis you seem to accept, and you now also appear to accept the role of illicit substance use in compounding that problem and making you vulnerable to committing extremely serious criminal offences.

49 As long as you remain free of illicit substance and alcohol use, you will be able to grapple with your underlying mental health condition. It is probably as simple and as difficult as that. You have, while at The Cottage in Shepparton, demonstrated your capacity to engage with treatment and become abstinent, now being, as your barrister submitted, ‘clean of the chief curse’ of methamphetamine addiction. You have also discovered you are still vulnerable to relapse, and that when you do, you can lose your liberty.

50 Taking all this into account, I conclude that your prospects of rehabilitation, in which the community has a long-term stake, with you still only 25, as medium to good.

51 I take into account that your plea contains within it an aspect of remorse. On your plea a letter written by you was tendered, which on its own and untested, might not have amounted to much - but in the context of the other features of your plea, it does carry some weight.

52 I take into account that the time you previously spent in custody before you were bailed and the time that you are spending in custody now is more onerous due to the circumstances of the pandemic. You have had less access to services such as ‘Alcoholics Anonymous’ and ‘Narcotics Anonymous’ meetings in custody, and it is accepted broadly now that prisoners are subject to uncertain regimes and less beneficial ones than in normal times, and I take this into account.

53 Moreover, I take into account that between February and December 2021 you submitted yourself to a regime that included some substantial restrictions on your liberty, particularly for the first several months of your time in The Cottage where you were governed by relatively strict conditions which restrained your freedom of movement. Those conditions abated over your time there but still involved your being accountable to an institution and subject to curfews and drug and alcohol testing. I take that period where your autonomy and liberty were limited into account in a general way in mitigation of your sentence, though I do not deduct this time in a formal or mathematical way.^[4]

54 I have also had regard to the current sentencing practices for the charge of causing injury intentionally. No case is much like yours. It is an unusual combination of the inexplicable, spontaneous and serious, but I sentence you in the general landscape of sentencing for this offence and I take the sentences in other cases for this offence into account.

56 I am obliged to sentence you in a way that deters other people from behaving in a similar way. Moreover, you must be punished for what you did, and this sentence must deter you from behaving in a similar way again in the future. Through me and through this sentence, the community denounces your offending. I must also have regard to the protection of the community in imposing a sentence on you.

57 The prosecution submitted on the plea that the only way the sentencing principles in your case could properly be balanced and served was by the imposition of a head sentence of imprisonment with a non-parole period.

58 Your counsel, however, argued for imprisonment in combination with a Community Corrections Order, acknowledging that such a disposition would allow me to still further impose more imprisonment before a CCO was to commence. This submission was advanced on the basis that a CCO is a more supple release structure than parole and would therefore be the better disposition in your particular case. It was also submitted that the combination of your relative youth, the work you have done so far on your rehabilitation, your family support, your diagnosis and the desirability of preserving the progress that you have more recently made militate in favour of that disposition.

59 While I considered those submissions, I had you assessed for a CCO and you were found to be suitable.

60 I consider the role for community protection in your case to be very significant. I have thought carefully about what is the best avenue to community protection in your case. I conclude that the best hope the community has that you will never again engage in violent behaviour is your rehabilitation. Perhaps sometimes the only community protection can be in the form of incapacitation in the form of more imprisonment. In considering community protection, I am careful in your case not to conflate the protection of the community with incapacitation,^[5] imprisonment measured in months or years. I have concluded that the best community protection will be achieved by a sentence of imprisonment in combination with a CCO. The other sentencing purposes must still be served, however, and in particular, I repeat here that there is a role here for specific deterrence. Mr Kenny, you need to understand now that if you relapse into drug and alcohol use or carry a knife or stop engaging with your mental health treatment, that you may well be incarcerated again and again and for increasingly long periods. Whatever could be said about your lack of understanding about these dangers for you in the past cannot now be said, not from here on. You know that you need to seek treatment consistently for your mental health condition and take this very seriously. You need to avoid alcohol and drug use and never, ever carry a weapon.

61 In the end, I have accepted your counsel’s submission that there is sometimes a strategic moment for structured and supported release into the community, and that, in your case, is not too far off, though you will have some more time to serve.

62 Declan Kenny, on Charge 1, causing injury intentionally, you are convicted and sentenced to a period of imprisonment of 16 months’ with a Community Corrections Order of two years’ duration.

63 Pursuant to section 18 of the Sentencing Act 1991, I declare that you have spent a total of 304 days' pre-sentence detention, to be deducted administratively.

65 I further declare that pursuant to section 6AAA of the Sentencing Act 1991, had you not pleaded guilty but been found guilty after trial, I would have imposed a sentence of three years’ imprisonment with a non-parole period of two years.

66 You will be first subject to the standard conditions of a CCO. That means, importantly, that you must not commit any other offences that are punishable by imprisonment, which is almost everything, during the 24-month period. Let me be clear about this: if you do commit any further offences, you will be brought back to court before me and resentenced for this offence and, absent very powerful reasons, you should expect that will involve your imprisonment.

67 You must report to the Moorabbin Community Corrections Service within two days of your release from custody.

68 You are required to advise your supervisor in the Corrections office of any change of address where you are living or working, and you must do so within two clear working days.

69 It is a term of all Community Corrections Orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Community Corrections officer. You are not able to leave the State of Victoria without their prior permission. That is for the entire 24 months.

76 I will also require you to participate, at least at first, in a program of judicial monitoring. That means you have to come back to court, and you can do that via remote video approximately two months after you commence the order

County Court of Victoria

DPP v Kenny [2022] VCC 471 (12 April 2022)