R v Kennedy [2023] VSC 401

1 In the course of an altercation inside a house in Bayswater North, Darryl Kennedy used a filleting knife to stab Christopher Taylor in the back, near his left armpit, and to slash his head. Bleeding, Mr Taylor staggered out of the house, then tripped and fell in the back yard. A neighbour heard him exclaim that he had been stabbed, and came to his aid. Mr Kennedy told the neighbour not to get involved, and muttered something about this being a lesson to "Dion", who was the owner of the house. He then left without providing any assistance to Mr Taylor. A little later, he discarded the knife in a rubbish bin at a nearby McDonald's restaurant.

2 Sadly, Mr Taylor died as a result of the stab wound to his back, which had pierced his left lung and pulmonary artery, causing extensive internal bleeding. He was aged 45.

3 These events happened soon after 7:00 a.m. on 12 September 2021. Mr Kennedy was arrested a short while later and charged with murder. He has remained in custody ever since.

4 In March this year, following a case conference in this Court, Mr Kennedy offered to plead guilty to manslaughter instead. The same offer had been made, but rejected by the Director of Public Prosecutions, back in December 2021. This time, it was accepted, and Mr Kennedy duly pleaded guilty to manslaughter in April.

5 On 15 June, I heard a summary of the prosecution case, victim impact statements, a plea in mitigation, and submissions from counsel.

6 It is now my task to impose sentence. This requires the synthesising of numerous competing and complimentary considerations.

7 Mr Taylor has lost his life as a result of a serious crime which carries a heavy maximum penalty. Inevitably, his loved ones are devastated. Mr Kennedy has numerous criminal convictions, albeit a comparatively modest history for offences of violence. He has struggled with heroin addiction for many years, and has a poor work history.

8 On the other hand, Mr Kennedy has strong family support. Further, despite suffering from autism spectrum disorder, which may limit his capacity for empathy, he is now genuinely remorseful for his crime. When his plea of guilty is added to the mix, and despite the bleak outlook offered in a psychological report, I think his chances of reform are reasonable, and must be encouraged. His time in custody has also been harder than usual, and is likely to continue to be onerous for the foreseeable future.

9 For these and other reasons I am about to give in more detail, I have determined that, for the manslaughter of Mr Taylor, Mr Kennedy will be sentenced to nine‑and‑a‑half years' imprisonment with a non‑parole period of six‑and‑a‑half years.

10 The following details substantially reflect the summary of the prosecution case read to the Court by Mr Rochford KC, who appeared with Mr Pickering for the Director.

11 At about 10:45 p.m. on 11 September 2021, Mr Kennedy, who was then aged 42, phoned his father, Phillip Kennedy. He said he had been kicked out of the Bentleigh home of his partner, Melinda Collins, over an unpaid loan of $500, and needed to be picked up. His father was not able to come, but suggested that his son should call police for help. Instead of doing that, it seems that Mr Kennedy made other arrangements, because, at 11:19 p.m., he boarded a train at Bentleigh Station for Flinders Street.

12 At 5:49 a.m. the next morning, Mr Taylor returned to the Ringwood Motel in order to recover personal possessions from the room in which he had previously stayed. However, he was unable to enter his room as the locks had been changed.

13 A little later, Mr Kennedy was collected by his father from the nearby Coles car park. He showed his father a phone message from an unknown person to the effect that he could come and collect his money. His father then drove him to 41 Mason Court in Bayswater North, arriving at 6:59 a.m.

14 Mr Taylor was living at this address. He and Mr Kennedy knew each other. The house was owned by Dion Beasley. With Mr Beasely's permission, Mr Taylor was staying at the house at this time, and both he and Mr Kennedy had resided there together previously.

15 At about 7:00 a.m., Mr Kennedy entered the house. At some point while inside, he confronted Mr Taylor. He stabbed him once in the back, near his left armpit, with a fish filleting knife, and cut him twice across the head and face. (It was not said in which order these wounds were inflicted.)

16 Mr Taylor ran from the house into the back yard. He called out for help to his neighbour, Justin Murphy, who awoke upon hearing screams. Mr Murphy looked over the fence between the properties. He saw Mr Taylor staggering and disoriented, with blood on his face, neck and sides. He said, repeatedly, that he had been stabbed. He then tripped on a tarpaulin and fell against a white utility parked in the back yard.

17 Mr Murphy asked his partner, Lyn Mitchell, to call an ambulance. He ran around to the front of the premises and into the driveway. He saw Mr Kennedy, whom he recognised as "Bub", a person who had stayed at the house previously. As Mr Murphy moved towards Mr Taylor, Mr Kennedy said to him in a calm voice, "It's none of your business, don't get involved." Nevertheless, Mr Murphy went to help Mr Taylor, who repeated that he had been stabbed. By this time, Mr Murphy heard him gargling and groaning in pain.

18 Mr Kennedy approached the two men. Mr Murphy noticed something in his right hand, which appeared to be thin and about 12 to 15 centimetres long. Mr Kennedy said, "Dion owes me $400.[1] Let this be a lesson to him. I'm going to jail for murder."[2] Mr Murphy was frightened, so he ran to get away. As he scaled the fence, he could see Ms Mitchell coming into the driveway, and he yelled to her to leave immediately.

19 Mr Kennedy left. As he went, he was heard by another neighbour to say, "They're drug dealers." He then walked along Bayswater Road until he reached a McDonald's restaurant in Canterbury Road. A short time later, he saw a marked police vehicle and started to walk away. At some point, he discarded the filleting knife in a rubbish bin outside the entry to McDonald's.

20 Meanwhile, Ms Mitchell had called triple-zero. Police attended the Bayswater North address and found Mr Taylor unresponsive in the back yard. He was pronounced dead at 7:19 a.m.

21 Police arrested Mr Kennedy not far from the McDonald's. He had a backpack containing a white Nike running shoe. He also had blood on his hands, neck and clothing. In his pocket, he had a cigarette with traces of blood on it. The other Nike shoe from the pair was found by police at the Bayswater North address, near Mr Taylor.

22 Police retrieved the filleting knife from the bin outside McDonald's. DNA analysis indicated that the blood of Mr Taylor was on the handle and the blade, and that the DNA of Mr Kennedy was on the handle.

23 Later that day, Mr Taylor's body was examined by Dr Greg Young, a forensic pathologist. Dr Young observed that Mr Taylor had suffered two slash injuries to the head, which were deep enough to cut to the bone but did not penetrate the skull. Further, he had suffered a stab wound to the back between the fourth and fifth ribs behind the left armpit. The stab wound had pierced the upper left lung and the left pulmonary artery. The trajectory of the wound was left to right, slightly back to front, on the horizontal plane. Around 1,200 millilitres of blood had settled in the left ventricular cavity of the heart. Dr Young concluded that the stab wound alone was the cause of death.

24 Following his arrest, Mr Kennedy was held in custody. From prison, he made a number of recorded phone calls to family members admitting his involvement in the offending. For example, on 21 October 2021, Mr Kennedy admitted to his mother that he was present and had the knife, but claimed that no-one saw him attack Mr Taylor. Three days later, he admitted to his brother that police could identify him as being at the premises. On 12 November that year, he admitted to his brother that Mr Taylor "bled out" quickly. A month later, on 10 December , he admitted to his mother that he had a knife, and said that, if in fear of his life, "I'm allowed to do what I want to survive". The next day, he admitted to his brother that he had been at Dion's house and that he had dumped the knife at McDonald's. Finally, nine days later, he admitted to his sister that he had been arrested at McDonald's and that police could prove he had the knife.

26 In the opening read by Mr Rochford, in addition to the foregoing matters, it was alleged that, as Mr Murphy scaled the fence at the Bayswater North address:

he could see [Mr Kennedy] crouch over [Mr Taylor] and strike [him] twice. Mr Murphy could hear the impact of the blows and see the raised arm of [Mr Kennedy].

27 Mr Halphen, who appeared with Ms Kelly for Mr Kennedy, explained that this particular aspect of the summary was disputed. He submitted that several factors should cause me to have a reasonable doubt that these alleged events occurred.

28 The following matters struck me as relevant to this issue.

29 First, Mr Murphy made no mention of this incident at all in his first police statement.

30 Secondly, in his next police statement, while he described part of the incident, he made no mention of seeing Mr Kennedy's raised arm.

31 Thirdly, he conceded in evidence at a preliminary hearing[3] that he did not see any blow connect with Mr Taylor. Moreover, he said that Mr Kennedy might have punched "the ground or ... something else".

32 Fourthly, while Mr Taylor had abrasions on his head and his left elbow, these did not appear to be the types of injury that could have resulted from the blows Mr Murphy described.

33 Fifthly, there was no other evidence that Mr Taylor sustained injuries elsewhere on his person that might have resulted from the blows alleged by Mr Murphy (which he associated with two "thud" noises).

34 Sixthly, it is reasonably possible that the abrasions were sustained in the course of the same struggle in which Mr Taylor was stabbed, which, the parties agreed, occurred inside the house. This, as I understood the submission, was consistent with the evidence of Dr Young at the preliminary hearing, for he opined that the fatal injury may have been caused in the course of an altercation. Dr Young accepted that the assailant might have inflicted that wound from the front with a roundhouse action holding the knife in his right hand, or, alternatively, if the two were engaged in a grapple on the floor, with the perpetrator underneath and Mr Taylor on top. Mr Rochford accepted that there must have been some sort of confrontation between the two men.

35 Finally, I would add that it appears reasonably possible that the abrasions might have been caused when Mr Taylor tripped on the tarpaulin and fell.

36 As I understood Mr Rochford, his submission was that it was open on the evidence to accept Mr Murphy's account of seeing and hearing the blows alleged. He emphasised that Mr Murphy said he heard two thuds. Equally, however, Mr Rochford explained that these events were not put as an aggravating factor and that, if accepted, they would make little, if any, difference to the sentence. He also made it plain that it was not alleged that Mr Taylor was stabbed during or as a result of these alleged blows, as it was agreed between the parties that the knife wounds, including the fatal wound, occurred inside the house.

37 In my view, it would be an aggravating factor for Mr Kennedy to inflict blows on Mr Taylor in the way described by Mr Murphy. This is because Mr Taylor had already been stabbed and slashed when inside the house and, on Mr Murphy's account, must have been prostrate on the ground in the yard at the time of the alleged blows.

38 However, having considered all of the material before me, including Mr Murphy's police statements and his evidence at the preliminary hearing, I am not satisfied beyond reasonable doubt that Mr Kennedy inflicted blows of any kind on Mr Taylor when in the back yard. My reasons for coming to that view largely reflect the submissions of Mr Halphen, which I accept. Accordingly, I am not prepared to act on this particular aspect of the prosecution summary.

39 Next, I shall address the victim impact statements read in Court.

40 The first was from Tanisha Lovell, who is Mr Taylor's adult daughter. Ms Lovell is distraught at her father's death and the manner in which it was caused. She is so sad that he never got to meet her daughter. She now knows that there are no words for some types of pain. She said that, while people say grief of this kind gets easier with time, that is not her experience. Ms Lovell thinks she will never forgive Mr Kennedy.

41 The second victim impact statement was from Antje Habedank, who is Mr Taylor's former partner, and the mother of their teenage son Ethan. Ms Habedank misses sharing with him all of their son's milestones and achievements. She misses Mr Taylor, who was the love of her life. She is broken with sorrow, and thinks Ethan is a shell of his former self. Like Ms Lovell, Ms Habedank cannot foresee being able to forgive the man who took Mr Taylor away from them.

42 These and other sentiments expressed by Mr Taylor's loved ones are perfectly understandable, and profoundly moving. In so far as it is permissible to do so, I have had regard to the victim impact statements in considering sentence.

43 I wish to add this. The sentence is not a reflection of the worth of Mr Taylor's life. It cannot be. Rather, it simply reflects the many factors I am required by law to take into account, only one of which is the impact on victims.

44 I turn now to the nature and gravity of manslaughter generally, and of this offence in particular, including Mr Kennedy's level of culpability.

45 The maximum penalty for the offence is now 25 years' imprisonment.[4]

46 While manslaughter is one of the more serious crimes known to the law, the circumstances of the offence and the offender, and the resulting sentences, vary widely.

47 The form of the offence relied on in this case is manslaughter by an unlawful and dangerous act. This means that, when he stabbed Mr Taylor to the back, while Mr Kennedy had no intention to kill or cause really serious injury or subjective recklessness thereto (for otherwise it would be murder), his plea of guilty accepts that his conduct was unlawful and dangerous and that it caused death. The stabbing was unlawful because it amounted to an assault without any justification or excuse. It was dangerous because a reasonable person in Mr Kennedy's position would have realised that, in stabbing Mr Taylor to the back as he did, he was being exposed to an appreciable risk of serious injury.

48 Mr Kennedy's offence had some serious features, including the following.

49 First, every offence of manslaughter has a grave component, by definition, in that the life of another has been lost in circumstances amounting to a crime. The law must maintain a special concern for the sanctity of human life.

50 Secondly, inevitably, as the victim impact statements show, the grief and pain for the loved ones left behind is palpable.

51 Thirdly, it is not suggested that there was any provocation or the like that might justify Mr Kennedy's behaviour. While there may have been a hint of excessive self‑defence in Mr Kennedy's remarks to his mother in the phone call mentioned earlier, it was not submitted that this provided an explanation for or any mitigation of the offence.

52 Fourthly, Mr Kennedy used a dangerous implement - a filleting knife - to stab Mr Taylor to a vulnerable part of the body.

53 Fifthly, while the other two knife wounds did not contribute to his demise, that they were inflicted to Mr Taylor's head gives the attack an added degree of gravity.

54 Sixthly, the offence was made worse by Mr Kennedy's decision to flee without rendering any assistance, and by his disposal of the knife.

55 Finally, Mr Halphen also accepted that it was an aggravating factor that the offence was committed in breach of a community correction order ("CCO") to which Mr Kennedy was subject at the time.

56 These matters must be weighed against factors limiting the gravity of this instance of manslaughter, which include the following.

57 First, it was not alleged that Mr Kennedy brought the knife to the house. Rather, Mr Rochford accepted that the evidence does not exclude the reasonable possibility that he picked it up while there.

58 Secondly, consistently with the last point, as far as may be gauged, I accept that the stabbing appears to have been spontaneous rather than premeditated.

59 Thirdly, I accept that, while no provocation or excessive self-defence is asserted, the stabbing occurred in the course of some sort of altercation or struggle between the two men. This is to be contrasted with, say, merely walking up to another and stabbing him in the back. Whether, as Dr Young accepted, they might have been standing face‑to‑face at the time, or Mr Taylor might have been on top of Mr Kennedy, I simply cannot say.

60 Fourthly, while I am satisfied that the nature of the fatal wound and the presence of the other wounds indicate an intention to cause harm, I am not satisfied that Mr Kennedy foresaw the possibility of death at the time of the fatal stabbing. In this regard, I note that there is unchallenged evidence[5] before the Court, which I accept, that Mr Kennedy was intoxicated at the time. This, I accept, is likely to have affected his judgment in the course of a struggle.

61 Finally, as I indicated earlier, I am not satisfied that there was any other gratuitous violence, such as punching or kicking or further stabbing while the victim was prostrate, as sometimes happens.

62 With his customary fairness, Mr Rochford submitted that, overall, while the offence is serious, it falls within the mid-range of gravity. While there are limitations in employing any sort of taxonomy, I accept Mr Rochford's classification of this offence as accurate, which I did not understand Mr Halphen to challenge.

63 I turn now to Mr Kennedy's personal history in more detail. Much of the following information was conveyed by Mr Halphen in his written and oral submissions, which were attractively put, and in the character references from Mr Kennedy's family, the psychological report of Dr Aaron Cunningham (written in 2013) and the recent psychological report of Patrick Newton (written in June this year).

64 Mr Kennedy is now 44. He grew up in the Bayswater area. He is the second son of Faye and Phillip Kennedy, who are aged 70 and 78 respectively. His brother Jaie is 45, and his sister Chelsea is 38.

65 His parents separated when he was only ten, which led to feelings of abandonment. Without his father in the home, there was little in the way of discipline, which led to Mr Kennedy drifting into an older, disaffected peer group.

66 Notwithstanding the challenges Mr Kennedy has presented for his family over the years, he shares a positive relationship with his parents and siblings.

67 Mr Kennedy has a very limited formal education. After attending primary school in Bayswater, he went to a technical school in Knox for a year, and then to another in Ferntree Gully. However, his school attendance was infrequent, and he left by the age of 14, in Year 8.

68 As a child, Mr Kennedy was sexually assaulted by a stranger. He also suffered physical abuse. These events coincided with the commencement of his illicit drug use, which I shall address shortly. He has never received any specific support or counselling to deal with the impact of these incidents.

69 As a result of his illicit drug use and general instability, Mr Kennedy has a limited and sporadic work history.

70 In about 1993, when he ended his schooling, he commenced work with his father. He ceased after attending a job site where he recognised another worker who had previously attempted to assault him sexually.

71 He has also worked with his brother, who is a qualified carpenter. Shortly before the current offending, he worked with his brother for some months.

72 He has also engaged in labouring work from time to time. In around 2009, when 30, he was continuously employed in a job for 12 months. This was his longest period of employment.

73 Mr Kennedy has had two significant relationships, both impacted by drug usage.

74 At 18, he commenced a five-year relationship with Carley Lesur. They have a son together, Chayce, who is now 22. Mr Kennedy and Chayce maintain a relationship, with regular contact.

75 At 27, Mr Kennedy commenced a relationship with Melinda Collins. This relationship was ongoing until the time of his arrest. They have a son together, Noah, who is now aged 13. Like his father, Noah has been diagnosed with autism. Mr Kennedy has been unable to contact his son in recent times because an intervention order prohibits this.

76 Illicit drug use has been a dominant feature in Mr Kennedy's life since he began using cannabis at the tender age of 12. Not long after that, he progressed to the use of methamphetamines. By the age of 16, he was using heroin intravenously.

77 His heroin use has been compulsive and intense, and has taken precedence over all other activities (except the use of other drugs).[6] His only significant periods of abstinence have occurred while he has been in custodial settings.

78 He has completed some limited drug education courses while in custody in the past. Beyond this, there has been very little counselling to address the behavioural component of his drug use, little attention to his immersion in drug‑using populations, and no focus on personality traits which have underpinned his addiction. His mainstay of treatment has been opiate replacement therapy with methadone during periods of incarceration.

79 Mr Newton's diagnosis is that Mr Kennedy has a severe substance use disorder. He regards his insight into drug use as poor and superficial.[7] Mr Newton went on to say this of the relationship between Mr Kennedy's personality, his interpersonal experiences and his drug use:[8]

Mr Kennedy's eccentric communication style makes it difficult for others to interpret the emotional intent of his communication. Further, he struggles to interpret subtlety and nuance in the expression of others. Compounding these problems, Mr Kennedy is not adept at the tasks of conversational fluency: finding conversational conventions (such as turn-taking) difficult to navigate. The confusion that has resulted from such issues has left Mr Kennedy with a negative perspective on interpersonal contact, so that he has been prone to become withdrawn from others and to retreat into the solipsistic oblivion provided by intoxication with illicit substances. This strategy has clearly been counterproductive and self-defeating.

80 In his court report prepared ten years ago, Dr Cunningham diagnosed Mr Kennedy as presenting with an autistic spectrum disorder ("ASD"). As Dr Cunningham explained, ASD is a lifelong developmental disability characterised by marked difficulties with social interaction, impaired communication, restricted and repetitive interests and behaviours, and sensory sensitivities.[9]

81 In a footnote to his recent report, Mr Newton explained that, because his consultation with Mr Kennedy was limited to a 90-minute assessment via video-link, it was not possible to undertake the testing required to confirm Dr Cunningham's diagnosis of ASD. Nevertheless, he said that his view was that the developmental history he received was more consistent with a personality disorder than ASD. He offered that, if concerns remained about such matters, an additional assessment of Mr Kennedy's cognitive functioning should be conducted by a neuropsychologist with particular expertise in the assessment of ASD.[10]

82 In the course of the plea, I indicated that, given other things Mr Newton observed in his report about Mr Kennedy (including his mildly eccentric presentation and difficulty in expressing empathy for others), I was prepared to act on Dr Cunningham's diagnosis of ASD. Neither Mr Halphen nor Mr Rochford sought to persuade me to a different view. Indeed, despite foreshadowing a request that the Court order a further psychological assessment, Mr Halphen withdrew that request once I gave the foregoing indication.

83 Following his ASD diagnosis in 2013, Mr Kennedy was placed on a disability support pension. Beyond this, he has had no other assistance for his disability. Prior to his incarceration on the current matter, he was not aware that he may be eligible for supports via the National Disability Insurance Scheme.

84 Back in 2013, Dr Cunningham also assessed Mr Kennedy as meeting the diagnostic criteria for dysthymic disorder. At that time, he presented with chronic depression (albeit at a low level) that had persisted for more than two years. Dr Cunningham added that those with ASD often have an impaired ability to mediate stress, anxiety and depression.[11]

85 In his report, Mr Newton noted the diagnosis of dysthymic disorder.[12] That said, and while Mr Kennedy had reported experiencing generalised dysphoria and anxiety at various times in his life, and that he had found his time in custody difficult in several respects, Mr Newton went on to opine that, "[a]s matters stand, Mr Kennedy's depressive symptoms are not sufficiently intense to meet DSM-5 criteria for any mood disorder, anxiety-related disorder or adjustment disorder".[13] I accept this aspect of Mr Newton's opinion, particularly given its recency.

86 Mr Kennedy has never engaged in any sustained period of therapy or treatment concerning his ASD, his depressive symptoms or his anxiety.

87 Mr Kennedy has an extensive criminal history dating back to his early teens. Since that history might be regarded as important to an aspect of Mr Newton's opinion that I shall address shortly, but which I do not accept, it is as well to describe it in some detail.

88 All of Mr Kennedy's previous appearances have been in the summary jurisdiction.

89 His first appearance as an adult was in 2000, at 20, when he was placed on an undertaking, without conviction, for possessing heroin. A month later, he was imprisoned for six months for car thefts, unlicenced driving, failing to answer bail, and possessing amphetamine. In the same year, he was sentenced to three months' imprisonment, wholly suspended, for burglary, theft, assault with a weapon, assault, and using heroin. That order was breached later, and the prison sentence was restored.

90 In 2001, he was sentenced to six months' imprisonment, again suspended, for dishonesty and driving offences, and using heroin. Three months later, he was sentenced to three months in prison for shoplifting.

91 In 2002, he was sentenced to 12 months' imprisonment, with a non-parole period of four months, for robbery, unlicenced driving, destroying property, and dishonesty offences. Four months later, he received a suspended sentence of four months' imprisonment, and was fined $1,500, for assaulting police. He was also fined $50 for being drunk in a public place.

92 In 2004, at 24, he was placed on a combined custody and treatment order for 12 months, with six months to be served in prison, for offences including shoplifting, burglary, and criminal damage. Two months later, he was sentenced to seven days' imprisonment, concurrent, for shoplifting.

93 In 2005, he was sentenced to six months' imprisonment for shoplifting and other thefts, and using heroin.

94 In 2007, he was fined for driving offences. Later that year, he was imprisoned for a total of 12 months, with a non-parole period of six months, for inter alia car theft, driving offences, escaping from custody, resisting police, recklessly causing injury, and using heroin.

95 In 2008 and 2009, he was twice placed on a community-based order ("CBO") for offences including shoplifting. Subsequently, he breached both orders.

96 In 2011, at 32, he was sentenced to a total of 14 months' imprisonment, with a non‑parole period of eight months, for burglary, shoplifting, other dishonesty offences, driving while disqualified, and using heroin.

97 In 2012, he was imprisoned for seven days, wholly suspended, for thefts. In 2013, that suspended sentence was restored. He was also imprisoned for five months and placed on a CCO for offences including theft, assault, and dealing with property suspected of being proceeds of crime.

98 In 2014, he was sentenced to six months' imprisonment, wholly suspended, for dishonesty offences, loitering, and possessing a dangerous article in public.

99 In 2015, he was placed on an undertaking for attempted car theft.

101 In February 2021, he was imprisoned for 32 days and placed on a CCO for assault. In May that year, the same CCO was breached and varied. He was also imprisoned for 55 days and placed on another CCO for making a threat to kill, breaching a family violence intervention order, car theft, and unlicenced driving. Three months later, he was placed on yet another CCO for driving offences. It appears that Mr Kennedy was undergoing at least the latter CCO when he committed the manslaughter.

102 I accept Mr Halphen's submission that Mr Kennedy's criminal history is consistent with a person inextricably tied to a drug-related lifestyle and culture.

103 In his report, Mr Newton painted a rather bleak picture of Mr Kennedy's personality. For example, he said this:[14]

A review of Mr Kennedy's personality indicates the presence of significant dysfunction. His developmental history discloses that he has experienced pervasive and intense social problems since childhood. These have fundamentally undermined the development of his identity. Beyond this, Mr Kennedy has not been able to establish himself in any of the societal roles necessary to develop adult maturity. Thus, his education was derailed before he reached secondary school, he has completed no vocational training and he has had only the most limited engagement with work - all of it supported by another family member. His relationships have uniformly been chaotic and dominated by substance use, instability and dysfunction. More generally, Mr Kennedy's attachment style is founded on solipsistic self‑interest, his capacities for empathy and intimacy are lacking, and he has little access to broader cultural knowledge which might serve to inform the development of mature identity, prosocial interests or functional views about major life issues.

Through his affiliation with other disaffected individuals since childhood, Mr Kennedy has come to view the world as a fundamentally meaningless and profoundly unfeeling place. He believes that only the strong will prevail and that there is little to be gained by adhering to the mores and values of a society which he feels has always banished him to its periphery. Mr Kennedy has therefore concluded that he must pursue advantage where it is possible, that adherence to 'the rules' is optional since it serves only to entrench his disadvantage, and that the pursuit of meaning is inherently illusory. Viewing the world in these terms, Mr Kennedy has engaged in recurrent offending, lacks empathy for those affected by his conduct and is unperturbed by the prospect of punishment. That is, not only is his 'consequential reasoning' poor, but he also learns poorly from negative events and remains egocentric in his approach to decision-making.

[These] personality traits ... are unequivocally maladaptive. They are strongly developed aspects of Mr Kennedy's personality, have been central to his orientation to others since childhood, and have remained essentially unchanged across adolescence and throughout adulthood. While I am reluctant to diagnose a personality disorder on the basis of a single interview without psychological test results, it is clear that Mr Kennedy's personality adjustment is deeply problematic. His history suggests that he suffered a conduct disorder in childhood. The most likely diagnosis at present is that Mr Kennedy suffers an antisocial personality disorder. This diagnosis is noted to be provisional, pending confirmatory assessment.

104 Mr Newton also conducted an analysis of Mr Kennedy's risk of violent recidivism. In doing so, he relied on the HCR-20, a well-known professional judgment instrument. Overall, he concluded that this analysis suggests that Mr Kennedy presents as a "high risk" of further violent offending, meaning that "his risk of further violence is substantially above average relative to a 'typical' violent offender facing sentence".[15]

105 As I remarked during the plea, if this opinion is to be taken as meaning that Mr Kennedy is a high risk of committing an offence of the same kind as he committed on this occasion, or of even greater violence, I do not accept it. I do accept that, in view of his personality, the nature of the current offence, and his criminal history, there must be a risk of further violence of some kind. But, while Mr Kennedy's offence of manslaughter was violent, and seriously so, in my view, neither that offence nor his criminal history for lesser offences of violence, nor the combination of these factors and his psychological profile, would justify the assessment offered by Mr Newton. His opinion, at least as I have understood it, is more in keeping with the case of an offender standing for sentence for a more serious offence of violence than committed on this occasion and who has a history of committing graver and more concerning offences of violence than those disclosed in Mr Kennedy's criminal history. Thus, I consider it would be unsafe to act on this aspect of Mr Newton's opinion.

106 I hasten to add three things. First - and this point applies to all issues on which their reports touched - given the experience and learning of both Mr Newton and Dr Cunningham, whose reports I have read on many occasions over the years, I would think twice, and again, before rejecting either psychologist's opinion, or preferring one over the other where there is a significant difference between them.

107 Secondly, Mr Newton was not called to give viva voce evidence on the plea. Presumably, his opinion might have been explained and clarified had he been called.

108 Thirdly, as I understand it, when making his assessment, Mr Newton did not have before him either Mr Kennedy's letter of apology or the references provided by his family. As we shall see, those materials form part of the evidence that leads me to conclude that, notwithstanding Mr Kennedy's personality and presentation, he is genuinely remorseful for his crime, and that his prospects of rehabilitation, while not strong, are not as bleak as Mr Newton's report might suggest, but instead are reasonable.

109 I turn next to consider more squarely the mitigating factors urged by Mr Halphen, commencing with Mr Kennedy's plea of guilty. This is a very significant mitigating factor, for four reasons.

110 First, Mr Kennedy offered to plead guilty to manslaughter on 1 December 2021, only seven weeks after his arrest. That offer was rejected by the Director. Following a case conference in this Court on 14 March 2023, the Director had a change of heart and indicated that a plea of guilty to manslaughter would be accepted. Subsequently, a new indictment charging that offence was filed, and Mr Kennedy duly pleaded guilty. In those circumstances, his plea of guilty should be treated as the equivalent of a very early one. This is so notwithstanding the cross-examination of some witnesses at a pre‑trial hearing in March 2022, as he was still facing a murder charge at that time.

111 Secondly, the plea of guilty carries with it an even greater utilitarian benefit than at other times, and therefore attracts greater mitigatory weight. This is because of the plea's effect of relieving pressure on the administration of criminal justice in the wake of the backlog in the court system resulting from the pandemic.

112 Thirdly, given Mr Kennedy's remark to his mother about self-defence, and the absence of any eye-witness to the stabbing, it could not be said that he had no prospect of defending the charge at a trial. On the contrary, many a trial has been won by an accused in far stronger cases.

113 Finally, the plea indicates remorse, to which I turn now.

114 As I indicated earlier, Mr Kennedy penned a letter to the Court. In it, he said he accepted full responsibility for taking Mr Taylor's life from him and his family, and he apologised to them for the damage he has caused. He also apologised to others, including his own family, for putting them through this ordeal.

115 These sentiments are supported by Faye Kennedy's observations in her reference concerning her son's remorse for what he has done. She thinks that not a day goes by without him thinking about those affected by his actions. Mr Kennedy's father Phillip, his sister Chelsea and his son Chayce all said similar things in their references.

116 These thoughts are also consistent with the remarks Mr Kennedy made to Mr Newton, which included the following:[16]

I feel horrible about what happened. ... I just feel horrible [because] he's got a family and stuff and I just don't, like, know how his family is and how his mum [feels]. I don't know, like, it would shatter her.

117 When these matters are added to his very early offer to plead guilty to manslaughter, and his acceptance of responsibility for that offence, I am satisfied that Mr Kennedy is genuinely remorseful for his crime and the devastation it has caused.

118 I make this finding notwithstanding that there may be limitations on his ability to show empathy, whether that arises from his ASD or some other aspect of his personality or psychological makeup.

119 The third factor in mitigation is that Mr Kennedy's time in custody has been harder than usual, for five reasons.

120 First, it is notorious that the hardship of time spent in this State's prisons has been greater than usual in the last few years as a result of the pandemic's effects on incarceration protocols. These protocols have included restrictions on family visits, the imposition of longer and more frequent periods during which prisoners are locked down in their cells, and greater limits on access to programmes. In Mr Kennedy's case, in recent times, he has been experiencing "lock-ups" for half-days because of staff shortages. He has been having only about 90 minutes outside each day. Sometimes, he even loses that period while waiting in the queue to obtain methadone. He has had only one in-person visit from a family member (his mother). His family contact has been conducted primarily over the phone. He finds engaging via Zoom to be too difficult for him. He has been able to speak with his son Chayce only about once a week. There has been limited opportunity to undertake programmes or education. He was able to do an education course about delivering "maths for tradies", but he has not been offered any drug rehabilitation courses.

121 Secondly, Mr Kennedy has been in protective custody over the entire period of his incarceration. As I understand it, this placement was required in the past, and is still required today, because his father was once a witness in a murder trial.

122 Thirdly, Mr Kennedy has been assaulted by another inmate. As is sometimes the way of these things in prison, he did not report the incident as an assault, instead saying that he fell in the shower.

123 Fourthly, while it might be thought that Mr Kennedy's ASD, depression and anxiety are not, of themselves, sufficiently debilitating to render his time in custody burdensome to the point of being mitigatory, I am satisfied that those afflictions can only have exacerbated the other hardships he has experienced in custody.

124 Fifthly, Mr Kennedy has had a murder charge hanging over his head for most of the period of his incarceration, which must have added further hardship to his time.

125 As for the future, it is likely that his protection status will persist throughout his sentence. While the pandemic restrictions have varied as the threat of the virus has been thought to wax and wane, it appears likely that these restrictions will remain in place in some form for a while yet. His ASD will be with him for life and, I expect, will continue to make dealing with other prisoners quite challenging for him on occasions. His symptoms of depression and anxiety, whether mild or worse, are likely to be with him for some time yet. Thus, I expect his time in custody will remain comparatively onerous for the foreseeable future.

126 Finally, I turn to Mr Kennedy's prospects of rehabilitation.

127 Mr Kennedy's long history of criminal offending, drug abuse and unemployment, his personality, and his psychological makeup, suggest poorer prospects of rehabilitation. Understandably, both Mr Rochford and Mr Halphen used the term "guarded" when describing those prospects.

128 On the other hand, Mr Kennedy's very early offer to plead of guilty, which he honoured at the first opportunity, his genuine remorse, and the strong family support he enjoys, suggest that those prospects are somewhat better than poor or guarded.

129 In the longer run, important to Mr Kennedy's chances of reform will be whether he is able to maintain abstinence from illicit drugs, especially heroin. The remarks in the references suggest that Mr Kennedy has a lot more to him than his history of drug use and criminal offending would indicate. His brother, for example, speaks quite positively of Mr Kennedy's goals in relation to his son Chayce, and of his wish to rid himself of drug addiction. At 44, he may well be ready to turn the corner, as some with like histories do when approaching middle-age.

130 On balance, while I do not say that his prospects of reform are excellent, or even good, I am satisfied that they are at least reasonable.

131 I turn now to the purposes of sentencing.[17]

132 General deterrence, denunciation and just punishment are important sentencing purposes in this case. Any person who kills another by an unlawful and dangerous act constituted by a stabbing to a vital area of the body will be guilty of manslaughter, and can expect to be punished by way of a substantial prison sentence, for it is an awful thing to do.

133 As for specific deterrence and protection of the community, those purposes also carry weight in the sentencing synthesis, especially given Mr Kennedy's criminal history. On the other hand, the weight to be given to those purposes is reduced somewhat by his plea of guilty, remorse and prospects of rehabilitation. In addition, notwithstanding Mr Newton's view that Mr Kennedy appears "unperturbed by the prospect of punishment", I think regard must be had to the fact that the time spent in custody since his arrest in September 2021 is by far the longest unbroken period of incarceration he has ever experienced, and under the harsher conditions occasioned by the pandemic to boot. In my view, these factors, when coupled with the reality that, on any view, in order adequately to cater for other purposes conducing to a more punitive sentence, he must spend a good deal longer in custody for this offence yet, mean that it is appropriate to place less emphasis on specific deterrence and protection of the community than might be thought necessary at first blush.

134 Rehabilitation remains an important purpose in fixing sentence in this case. That Mr Kennedy has reasonable prospects of reform make rehabilitation a sentencing purpose that must be afforded substantial weight.

135 It is also necessary to recognize the interplay between rehabilitation and protection of the community in the longer run. In so far as sentencing permits, Mr Kennedy should be encouraged to reform. He will be returning to the community eventually. It is in the community's interests that his prospects of rehabilitation are maximised, so that, when he is released from prison, his chances of successful reintegration into the community are the best they might be. If he is given the incentive to work towards release on parole at the earliest opportunity and then is supervised and supported for the duration of his parole period, that is likely to be conducive to his further reform which, in turn, will redound to the benefit of the community in the longer term.

136 Finally, it is essential to understand that s 5(3) of the Sentencing Act 1991 (Vic) commands that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. This provision reflects the common law notion of parsimony, a fundamental principle which at times appears to be ignored - or perhaps forgotten, if ever it was known - in some areas of discourse about sentencing. I have applied this principle in arriving at the sentence selected.

137 In so far as I can determine them, I have had regard to current sentencing practices for manslaughter. This is but one factor in sentencing, and certainly not a controlling one at that, but it is nevertheless important in the sentencing synthesis.

138 To this end, I have had regard to sentencing statistics for the offence.[18] In doing so, however, I recognise that such statistics are of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations. Further, those statistics concern sentences imposed during a period spanning both the previous (lower) maximum penalty and the current (higher) maximum for the offence. Nevertheless, they do give some guidance.

139 Helpfully, in order to assist in gauging current sentencing practices in a more targeted way, Mr Halphen provided a table of sentences in particular cases where the offence of manslaughter was committed by the infliction of a single stab wound.[19]

140 I have considered the cases in the table, and many other manslaughter sentences more generally. It is possible to make nuanced comparisons between these cases and the present matter. But, in the area of sentencing, it is almost always difficult usefully to compare cases. None of those I considered was quite the same as Mr Kennedy's case. And, in any event, sentences are not precedents to be applied or distinguished.

141 In the end, as always, because of the limits of statistics and the process of comparison, I have been driven to rely principally on the circumstances of this case and sentencing principles to arrive at the appropriate sentence for this offence of manslaughter.

144 Balancing all relevant considerations as best I can, as I indicated at the outset, for the manslaughter of Mr Taylor, Mr Kennedy is convicted and sentenced to nine‑and‑a‑half years' imprisonment with a non‑parole period of six‑and‑a‑half years.

145 Pursuant to s 18 of the Sentencing Act, I declare that, including today, 667 days of pre‑sentence detention be reckoned as served under this sentence.

146 Pursuant to s 6AAA of the Sentencing Act, I am required to declare the sentence I would have imposed had Mr Kennedy pleaded not guilty but been found guilty following a trial. This is always a strained exercise, because the absence of a plea of guilty may affect other sentencing considerations, such as remorse, prospects of rehabilitation and the weight to be given to sentencing purposes such as specific deterrence. Nevertheless, doing the best I can, declare that, but for Mr Kennedy's early offer to plead guilty and his entry of that plea, I would have imposed a sentence in the order of 12‑and‑a‑half years' imprisonment with a non‑parole period of nine‑and‑a‑half years.

[1] I interpolate that, at this time, Mr Beasley believed he owed about $200 to Mr Kennedy.

[2] It was not suggested that this remark amounts to an express or implied admission to murder. Merely to have caused the death of another unlawfully may, in some spheres, be described as murder, despite the inaccuracy of that classification as a matter of law. Given the way in which this matter settled, the remark can be seen in that light, or perhaps as an implied admission to manslaughter, or merely as bravado.

[3] Conducted pursuant to s 198B of the Criminal Procedure Act 2009 (Vic).

[4] See s 5 of the Crimes Act 1958 (Vic).

[5] Statement of Phillip Kennedy at [6], [9] & [13]; and report of Mr Newton at [32] & [34].

[6] Report of Mr Newton at [24]-[25].

[7] Report of Mr Newton at [50], [53] & [54].

[9] Report of Dr Cunningham at p 2; see also pp 3-4.

[13] Report of Mr Newton at [27] & [38]-[41].

[14] Report of Mr Newton at [45]-[47].

[15] Report of Mr Newton at [55]-[58] & [61]((16)-(17)).

[16] Report of Mr Newton at [36]-[37].

[17] See s 5(1) of the Sentencing Act 1991 (Vic).

[18] Sentencing Advisory Council, Sentencing Snapshot: Manslaughter, No 274, June 2023.

[19] The table contained the following decisions (each period of imprisonment is indicated in parentheses, in years ("y"), together with the non-parole period, if any, indicated after a slash ("/")): Papadopoulos v The Queen [2014] VSCA 63 (11½y/9y); Tiba v The Queen [2013] VSCA 302 (10y/6½y); DPP v Harrison [2021] VSC 601 (9¾y/6½y); DPP v Hocking [2022] VSC 608 (9y/6½y); R v Volpe [2021] VSC 353 (9y/6y); DPP v Devey (No 2) [2021] VSC 121 (7½y/5½y); R v Deng [2023] VSC 257 (7½y/5y); and DPP v Yassin [2021] VSC 780 (7y/4y). Of these cases, the following were subject to the lower maximum penalty of 20 years' imprisonment: Papadopoulos; Tiba; Harrison; Devey; and Yassin.