District Court New South Wales Medium Neutral Citation: Kenny v R [2020] NSWDC 800 Hearing dates: 17 November 2020 Date of orders: 17 November 2020 Decision date: 17 November 2020 Jurisdiction: Criminal Before: Neilson DCJ Decision: Appeal dismissed. Catchwords: CRIME – Appeal against severity of sentence – Local Court imposed CCOs for breaches of an ADVO – Appellant sought CRO – Long history of domestic difficulties between complainant and appellant – Appellant needs assistance to comply with his legal obligations – Supervision under CCO will provide such assistance – Last breach of ADVO serious – CRO would not adequately reflect criminality concerned – Appeal dismissed. Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Category: Principal judgment Parties: Jace James Kenny – Appellant Crown – Respondent Representation: Appellant – Petrushnko (Counsel) Respondent – Clark (DPP) Crown – Clark (DPP) File Number(s): 2020/00240270 Publication restriction: Nil. Decision under appeal Court or tribunal: Local Court of NSW Jurisdiction: Criminal Date of Decision: 13 August 2020 Before: Dunlevy LCM File Number(s): 2020/00240270 Judgment 1. HIS HONOUR: This is an appeal against the severity of a sentence passed by Magistrate Dunlevy, sitting in the local court at Tweed Heads, on 13 August 2020. 2. To understand the background of this case, it is necessary to go back somewhat in history. The appellant commenced a relationship with Alexandra Brandon, in November 2018. The appellant was examined by a clinical psychologist, Ms Sarah Campbell, for two hours, on 20 April 2020. The appellant gave Ms Campbell this history of his relationship with Ms Brandon: "Mr Kenny stated that he was first acquainted with the alleged victim, in November 2018. He explained that their relationship progressed very quickly, with him proposing within the first three months. Thereafter, he said that their communication patterns deteriorated largely due to his alcohol abuse. Mr Kenny that when intoxicated, he had a propensity to become verbally abusive and critical. He said that he would retaliate and alleged that she had broken objects in the context of their disagreements. Thereafter, Mr Kenny said that they would often break-up for periods before getting back together. Whilst separated, he said that he would get help for his addiction and mental health difficulties before relapsing after they recommenced their relationship." 1. As far as the law is concerned, police first became involved, it would appear, in January 2020. By that time, there was in place an ADVO, which was due to expire on 17 November 2021. The terms of that ADVO were these: "You must not do any of the following to Alexandra Brandon, or anyone she has/have a domestic relationship with: A. Assault or threaten her; B. Stalk, harass or intimidate her; C. Intentionally or recklessly destroy or damage any property that belongs to or is in the possession of Alexandra Brandon. You must not approach or be in the company of Alexandra Brandon for at least 12 hours after drinking alcohol or taking illicit drugs. You must not go into any place where the protected person works. You must not go within 100 metres of any place where the protected person lives." 1. At relevant times, Ms Brandon has been living at Eureka Road, Clunes. On 13 January 2020, Ms Brandon had called an electrician to perform maintenance work at her property. According to the facts sheet, at 8.45pm but more likely at 8.45am, the electrician told Ms Brandon that there was a male asleep in a white, small car on her property. Ms Brandon went to investigate and found the appellant sitting in the front passenger seat heavily intoxicated. The white vehicle belonged to the appellant. On that occasion, the victim took a photograph of the appellant, as he sat in red underwear, with an empty bottle of vodka at his feet. His presence, at her property, was a breach of the ADVO. 2. On 19 January 2020, the appellant again attended at Ms Brandon's home, driving his white Toyota vehicle. That was another breach of the ADVO. On that occasion, the appellant stayed until the morning of 21 January 2020, until Ms Brandon left with her two children, to take a short holiday near Yamba, without the appellants being present. 3. Later during that day, there was an argument between Ms Brandon and the appellant, while the appellant was at her holiday accommodation. During that argument, Ms Brandon was sending text messages to a close friend, identified as Dr Webb. Dr Webb continually told Ms Brandon to call the police. When she did not, Dr Webb called the police herself. That caused police from Mullumbimby to attend Ms Brandon's home at Clunes but they found that she was no longer at home, nor was the appellant found at Ms Brandon's home. 4. At 4.15pm, on that day, the police called Ms Brandon, on her mobile phone. She told the police that she was in Yamba with her two children, in Airbnb accommodation. The police asked for her address so that they could visit her to confirm that she was safe but Ms Brandon refused to tell the police her address. 5. However, the appellant had, perhaps by following her, met up with Ms Brandon at her holiday accommodation. In the afternoon of 22 January 2020, he went into Yamba and bought a six-pack of alcoholic cider. During the night, he consumed the alcohol, whilst he was sitting on the rear balcony of Ms Brandon's accommodation. Ms Brandon did not agree to his doing that. She was caring for her two children, aged five and three. She fed the children and herself and put the children to bed, before going to bed herself. She thought that the appellant would remain outside. However, she was awoken, by the appellant, who was standing over her, acting in a strange way, threatening to harm himself. He commenced to verbally abuse Ms Brandon. As Ms Brandon was lying on the bed, the appellant put his hand over her face, whilst leaning on her. The force caused her pain and his hand was over her mouth, causing her difficulty to breathe. The appellant then stood up and began to urinate on Ms Brandon's bed. She got out of bed and left the bedroom. 6. In the kitchen, the appellant grabbed a steak knife and held it at his own throat and told Ms Brandon to push it into his throat. The appellant's behaviour scared Ms Brandon. The appellant then went looking for car keys, saying to Ms Brandon that she was trapped, in the holiday accommodation and he was going to lock her out of the house. 7. Fearing for her safety, Ms Brandon called the emergency number and sought to hide with her children in their bedroom but the door to that room could not be locked. The appellant pushed into the room and turned on the lights and was attempting to wake the children up, yelling and clapping. This odd, aggressive behaviour continued and the appellant was yelling at Ms Brandon and directing her to take her iPad and smash it. That could be overheard by the 000 operator. 8. Police arrived at the holiday accommodation at 1.08am. The police had come from Maclean. The appellant was intoxicated and smelt heavily of alcohol. The ADVO was then varied, to prevent any form of contact between the appellant and Ms Brandon. Ms Brandon told the Mullumbimby Police that she wanted nothing more to do with the appellant and was concerned for her personal safety and that of her children. She told the police that she was "petrified" about the appellant. 9. As a result of those interactions, the appellant was charged with five offences, three offences of contravening the ADVO, one charge of common assault and one charge of stalking or intimidation, with intent to cause fear or physical harm or the like. 10. The appellant presented to the Court the report of the clinical psychologist, Ms Sarah Campbell, dated 23 April 2020. The magistrate, sitting at Tweed Heads, conditionally dismissed each of the charges, pursuant to s 32 of the Mental Health Act. Annexed to Ms Campbell's report was a treatment plan, which required him to attend upon Ms Campbell weekly or as directed by Ms Campbell, over a period of six months, for psychological therapy. The mental health treatment plan also required the appellant to attend ongoing interventions, at the Currumbin Clinic, to address alcoholism and mental health difficulties, weekly, with a group program. 11. Despite the orders made, by the Local Court at Tweed Heads, on 7 May 2020, despite the existence of the treatment plan and the appellant's compliance with it and despite the terms of the ADVO, which had been "strengthened", the appellant still breached the ADVO. 12. By July 2020, the ADVO prevented contact, in any way, between the appellant and Ms Brandon, other than through a lawyer and he was not permitted to go within 10 metres of any place where Ms Brandon lived or any place where she worked or Eureka Road, Clunes. 13. On 24 July 2020, the appellant sent Ms Brandon a text message. He sent further text messages on 25 July, 26 July, 27 July and 28 July. There was another text message sent on 29 July and another on 30 July. There was an attempt to telephone her on 31 July 2020, at 9.59am and at 1.17pm. He then sent a text message, requesting that a record of his academic subjects be sent to his home address in Tweed Heads. It appears that Ms Brandon agreed to do that because she replied with a thumbs up message. That provided another opportunity for the appellant to send her a further text message. To that, Ms Brandon replied that she would send his academic record to him. The appellant then sent further text messages to Ms Brandon, asking that she send to him his PlayStation and games, which prompted Ms Brandon to reply that she would do so, provided that the appellant provided her with money with which to pay the postal costs. There was then further text messages, in which there was clearly a disagreement about the cost of the PlayStation and as to how things were to be sent to the appellant. 14. The interaction between the appellant and Ms Brandon was between 24 July 2020 and 31 July 2020 was the subject of one charge of contravening a prohibition or restriction, in an apprehended domestic violence order. There was further interaction between the couple, on 1 August 2020, when the appellant sent a text message to Ms Brandon. That was the subject of another charge of contravening the ADVO. There was a third charge of contravening the ADVO, on 11 August 2020, when a further text message was sent to Ms Brandon. The text message was this: "Hey, I hope you are doing well. I will be down your way tomorrow with work and I was wondering if we could meet up, so that I can grab my soccer boots. My client wants to kick a ball around. If not that is cool. Maybe if you can post it, I will reimburse you for the cost of the postage obviously." 1. The final charge, which is the subject of this appeal, was for interaction with Ms Brandon, on Thursday, 13 August 2020. There was a disturbing exchange of emails. The first email had a subject heading "please stop". It commenced thus: "Hey, I know what you have been doing. I was so upset. Look I understand. Alex I am finally getting my life back. Why do you want to destroy my life? I want your happiness. Why are you killing me? I won't survive this. Please stop it. Please. I want to live. Please." That email was sent at 1am. Ms Brandon replied, via email: "What do you mean?". That brought this response from the appellant: "I am up if you want to call me". The appellant then sent a further email: "I am going to leave. Permanently. Just stop. I am trying to live, not survive. Alex, please. I'm really scared." At 1.07am the appellant rang Ms Brandon, on her mobile phone. She, however, decided to answer because she was concerned that due to the last email sent, it was possible that the appellant might self-harm and by answering the call, she might be able to stop any such event. When she did speak with the appellant, she recognised him as being drunk. Without in any way wishing to be discourteous, the appellant has a history of alcoholism. During this phone call, the appellant said to Ms Brandon: "If you call the cops it will destroy my life. I will destroy your life as well!" The appellant also told Ms Brandon that she would lose her children and lose everything. He then continued to talk about harming himself and was mumbling, no doubt in his drunken state. There was a clear threat made to Ms Brandon about her own life and that of her children. The appellant also said that he would set Ms Brandon up and have her arrested if she reported his behaviour to the police. According to Ms Brandon, the appellant continued to ramble on in a drunken fashion until the phone call ended, when he either dropped the phone or fell to sleep. Ms Brandon then sent an email containing this: "There is no need to threaten me on the telephone. I Skyped you only out of concern for your wellbeing. You were drunk, verbally aggressive and threatening to me. This is very frightening for me." Clearly, Ms Brandon was extremely upset and frightened by her interaction with the appellant on the telephone on 13 August 2020. 1. At 12.49pm, that is some 12 hours later, the appellant sent this message to Ms Brandon: "I have a witness to the whole conversation. Lying in court is a crime. I am kindly asking you to leave me alone and stop trying to destroy my life. I am on the verge of a mental breakdown and harming myself because you are interfering in my life. My roommate is scared that you are going to hurt her. I am scared you will hurt me too. Please Alex. Stop. Leave us all alone." This is continued bizarre behaviour. Ms Brandon was not interfering in the appellant's life or threatening to. The appellant was interfering in her life and threatening her. 1. That led to four charges of breaching the ADVO, which came on for hearing before Dunlevy LCM at Tweed Heads, on 18 August 2020. In respect of each charge, his Honour imposed a community corrections order, for a period of 18 months, requiring the offender to be supervised by community corrections at Tweed Heads. 2. Today, the appellant, by his counsel, asks that that sentence be set aside and in lieu thereof, that the Court make a conditional release order, with a conviction and place the offender on a CRO for a lengthy period of time, such that if he breach the term of the conditional release order, he be called back to court to be resentenced for the four offences, for which he brings this appeal. 3. Despite the existence of the mental health plan and the appellant's adherence to it, he still, clearly, breached the ADVO and he still relapsed to alcohol use and become drunk, at least in the interaction on 13 August 2020. 4. The appellant clearly needs assistance, in complying with his legal obligations. Such assistance can be provided to him by community corrections. Without assistance, it is possible that he will relapse again and again breach the ADVO. In other words, the existence of the CCO, with supervision by community corrections, is, in my view, in the best interest of the appellant himself and of Ms Brandon. Furthermore, considering the criminality involved, in particular, on 13 August 2020, in my view, a conditional release order would not adequately reflect the criminality involved, in the breach of the ADVO, committed on 13 August 2020. For those reasons, the appeal is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 January 2021