Director of Public Prosecutions v Kelberg

[2018] VCC 611

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 17-02230

DIRECTOR OF PUBLIC PROSECUTIONS

v

SCOTT KELBERG

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 May 2018
CASE MAY BE CITED AS:	DPP v KELBERG
MEDIUM NEUTRAL CITATION:	[2018] VCC 611

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr T. Lynch	Brian Birrell Solicitors

HIS HONOUR:

1In the late afternoon of 20 April 2017, the young teenage victim was innocently walking home from school.  She had been asked to help her mother by preparing dinner.  Her mother was then incapacitated due to recent surgery.  As she walked home, she was looking at her phone.  It was both a modern and a time honoured scene, repeated daily by young school aged children, heading home at the end of a school day.  In all the circumstances of the quiet country town in which she lived and went to school, her parents and she were well and truly entitled to be confident that she would get home safely, but she did not.  At the Cobram Showgrounds, she came across you, Scott Kelberg.

2You were in your ute and you drove past the victim and then stopped.  You asked her for directions and she politely answered.  You pressed her asking further questions.  You then got out of your car and approached her.  Out of the blue and in a most frightening manoeuvre, you grabbed her around the waist.  She screamed for help in terror.  You tried to stop her screaming by putting your hand over her mouth.  Bravely she bit your finger.  You said falsely, "If you let go of my finger, I'll let you go.  I'll let go of you".  All this was happening as you dragged and wrestled her into the back of your car.  That is the four door ute, not the rear part of the ute.

3You then lay on top of her, pinning her arms to her chest.  You got a small black ball and pushed it deep into her mouth getting your fingers out.  She was able to cough the ball out.  You got a towel and put it over her face, pressing it down so she could not easily breathe and could not see.  At this time, two courageous men who had seen you grab the young victim and put her in your car came over to the car.  One, Mr Johnson, was in a wheelchair and the other his friend,
Mr Binotto, was pushing him. 

4They called out for you to stop and let her go.  This prompted you to get out of the back of the car and into the driver's seat.  You started the car intending to drive off with the victim helpless in the back.  The victim again with great bravery and no doubt great terror, got herself to the back door and opened it and jumped out of the car as it was ending its reversing and about to head forward and away.  All this was done very quickly. 

5Mr Binotto got to the driver's door, holding onto the car, trying to stop you leave when you took off.  The police were called.  The victim was taken to hospital and she had some swelling to her lip and mouth.  However, understandably, the greatest impact on her has been the psychological trauma of what you put her through.  She has chosen not to make a victim impact statement.  Both her parents in heartfelt victim impact statements describe the effect on them of this frightening crime.

6They speak of how now they must be vigilant to ensure their daughter feels safe at all times.  The social engagements of the family have been curtailed.  Each of the victim's parents working lives have been adversely effected.  The victim's mother had recently had surgery.  She feels worse for not being able to care for her daughter, indeed the rest of the family at this critical time.  She said the crime exacerbated her healing.  She was unable to sleep and was angry and tossed and turned for many months.  She was physically incapable of helping the victim and their son "When they both needed me".  It left her husband to handle a lot of issues that had now developed.  "Our family life, as we knew it, was altered forever".  She goes on:

"I can still hear my little girl's words just as clearly today, as [she] said them to me the day after that hideous crime".

7She quotes her daughter:

"I hope they pick a nice photo of me for my funeral.  The victim thought this during the crime and we both sobbed and squeezed each other on my bed". 

8She says that this painted a clear picture of how the victim felt and the gravity of her experience. 

"This clearly broke my heart.  It made me feel empty, completely overwhelmed and just so numb.  My world, as I know it, was turned upside down". 

9She goes on:

"The victim naturally has a wonderful, beautiful, confident disposition.  I could see the effects of the crime.  It had shattered a lot of her confidences and trusts in people.  This gutted me.  This was not the same girl we raised.  I witnessed and felt her trauma, anger, fear and trust being questioned on a daily basis.  Simply walking our dog, passing strangers or talking in front of her class can create anxiety.  These are real problems that I tackle daily".

10Her father writes that he still gets angry every time he thinks of the crime.  He feels tired and it is nearly twelve months later.  He gets anxious if he cannot contact his daughter.  He is worried that the once confident, friendly bubbly girl, will get taken advantage of emotionally and physically.  He worries about his daughter shutting down.  He worries that she cannot walk to school.  He worries that she cannot walk down the street to her place of work and they have to drop her off and pick her up.  He writes:

"There are so many areas that have changed in her life.  We now plan our times around her and her needs on a daily basis".

11I have ensured that I have approached these victim impact statements in accordance with the law.  That is, to consider the effect on the person who made the victim impact statement.  That of course includes the effect on each of the parents here, on seeing how their bubbly, confident child is now not the same.

12Following your arrest on 20 April 2017, you ultimately indicated a plea of guilty in November of 2017 at a committal, but prior to any cross-examination of any witnesses.  The Director of Public Prosecution has indicted you and you have pleaded guilty on arraignment today, to a single charge of kidnapping.  It is an offence of common law, that offence carries the very long maximum term of 25 years imprisonment, reflecting just how seriously the community, through our Parliament, views this frightening crime.  This long maximum term is a factor that I must and I have had regard to.  Also, by recent amendments to the SentencingAct, this offence is now categorised as one requiring a sentence of imprisonment, unless certain circumstances exist. I have considered carefully the relevant amendments to s.5 which read:

"For this offence, a court must make an order under Division 2, Part III, other than a sentence of imprisonment imposed in addition to making a community corrections order in accordance with s.44 of NewLaw.  In other words, a sentence of imprisonment must be imposed, unless and relevantly, the offender proves on the balance of probabilities that:

1)  At the time of the commission of the offence, he had impaired mental      functioning that is causally connected to the commission of the offence       and substantially reduces the offender's culpability or;

2)  The offender has impaired mental functioning that would result in the   offender being subject to a significantly more than the ordinary burden      or risks of imprisonment.

13Sub-s.(e):

"There are substantial and compelling circumstances that justify not making an order under Division 2, Part III that is not a sentence of imprisonment imposed in addition to making a community corrections order in accordance with s.44".

14I have come to the conclusion that a sentence other than one of imprisonment is precluded by the provisions of the Sentencing Act.  For reasons that will be made clearer as I discuss your personal circumstances, I do not consider it has been established on the balance of probabilities, that sub-s.(c) is satisfied, that is, that at the time of the commission of the offence, you had an impaired mental functioning that was causally linked to the commission of the offence and substantially reduces your culpability.  Nor do I consider, on the balance of probabilities, that any impaired mental functioning that would result in you being the subject to significantly more than the ordinary burden of imprisonment.  Further, I do not consider that there are substantial and compelling circumstances that would justify not making an order of imprisonment. 

15Also what is required by the Sentencing Act is that I must assess the gravity of your offending and your moral culpability.  The violent snatching of a vulnerable young woman from the street is a crime that creates corrosive fear in our community.  A fear that our streets are not safe, even in quiet regional towns in the broad daylight.  The fear you caused the victim was considerable and unforgiveable.  The offending was relatively brief, but it cannot be forgotten that that was because the victim was able to get away from your car, as you were about to take her away.  You did what you had to do to kidnap her, including lying on top of her and trying to subdue her with a ball in her mouth and the towel over her face and head.  You drove away with one of the men who came to the rescue, still holding the car.  There were times before you wrestled the victim into your car and while she was in your car, that you could have and should have come to your senses, but you did not and you pressed on with your intent to kidnap and take the victim away.  This was only thwarted by her courage and that of Mr Binotto and Mr Johnson.

16However, as your counsel Mr Lynch emphasised, there were no features that are often present in kidnapping, such as the use of weapons, long periods of detention, threats, gratuitous violence, planning.  As discussed with him, there are always more grave circumstances and offence that can be imagined, or are evident in other cases.  The important issue of what you intended to do with the victim was addressed by the police in your record of interview.  By and large, you made a no comment record of interview, though you did admit your presence and the grabbing of the victim and other details.  At the end of the interview, the policeman asked you what you intended.  You said that to be honest, you did not know, you were confused, you had mental health issues.  The policeman then put to you that the only logical conclusion was that you intended to have sexual intercourse with the young victim.  He asked you what you had to say about that and you said "Yeah". 

17On this topic, you spoke to a Medico-Legal psychologist Ms Lechner.  In her report, she wrote as follows, quoting from you, that you acknowledged your role in the offence and admitted that "It looks like a sexual assault".  You went on:

"That day I went to court" and your [ex-partner] Serena, "Put an intervention order on me and I remember driving home and stopping at the side of the road and I broke down crying, thought of suicide.  I thought of driving my car into a tree.  I didn't want to go home, I was driving around trying to clear my head.  Things playing in my head that I'd lose the kids.  Felt it was the end of the world.  Serena with a new bloke.  Felt I'd lost everything.  Felt mostly sad, shaking and crying.  Went to the showgrounds.  I was going to park and think for a bit.  I asked the girl where the path went and then I grabbed her and the incident happened".

18When asked by Ms Lechner what was going through your head, you stated "Not sure to be honest".  You added, "I don't know if anger kicked in".  You claimed you had "No sexual thoughts when it was happening.  I regretted it almost straight away".  You denied sexual fantasies of this nature, adding "I have a habit of holding things in and then snap and have outbursts".  He concluded, "I regret it.  It wasn't right.  It ruined my life.  Affected her life as well.  Pretty much ruined my life, lost my kids".

19Ms Lechner then went onto apply the relevant actuarial type assessments of your risk of sexual offending in the future and concluded that you were a moderate to low risk.  I consider this to be as accurate as these predictions can be for the future.  I consider the fact that you have no past like offending and have found gaol to be very hard as a consequence to lower your future risk. 
Ms Lechner considered that you needed further assessment from the Sex Offences Assessment Team to determine if any treatment for sexual offending was indicated.  I am well mindful that you have pleaded guilty to kidnap and not some other - or additional offence such as abduction for the purposes of sexual penetration.

20Mr Lynch addressed this issue carefully and I will apply the principles of the High Court case of De Simoni v R, and the Court of Appeal decision in R v Newman and Turnbull.  That is, that you are not to be punished for a crime that you have not pleaded guilty to, or be sentenced as if those offences were the offences and not the ones on the indictment.  In particular, as you were originally charged with those types of offences.  However, those principles, in practical operation, do not artificially restrain me from sentencing you according to the well-known sentencing processes articulated by a five Judge bench of the Victorian Court of Appeal in the R v Storey, which were adopted by the High Court in Pearce v R.  What was said in Storey, succinctly captures the sentencing task in terms that ordinary members of the community will well understand and thus have greater confidence in the criminal justice system.

21What was said by the Court of Appeal was in terms:

"That the task of a Sentencing Judge, is to ascertain what an offender did and ascertain why the offender did it and also ascertain who the offender is".

22The court and in particular, the High Court went on to speak of the need for sentencing to avoid excessive subtleties and in sentencing, to set out the task in ways that ordinary members of the community can understand.  What was said in Pearce was the following:

"Sentencing is a social instrument whose character is determined by its practical purposes and its practical limitations.  It has to employ methods which are in important respects, rough and ready.  It must be operated within society as a going concern.  To achieve even a minimal degree of effectiveness, it should avoid excessive subtleties and refinements.  It must be administered publicly in a fashion that its activities can be understood by ordinary citizens and regarded by them as conforming with the community's generally accepted standards of what is fair and just. 

Thus, it is a fundamental requirement of a sound legal system, that it should reflect and correspond with the sensible ideas about right and wrong of the society it controls.  This requirement has an important influence on the way in which the Judges discharge the function of imposing punishments upon persons convicted of crime".

23The High Court in Pearce having quoted earlier in non-curial lectures relating to the courts and criminal punishment said "That those matters remain true.  Excessive subtleties and refinements must be avoided".

24So to understand what you did and importantly why you did it, I must not put my hands over my eyes or over my ears, as if your own words in your record of interview and those to Ms Lechner, were not said.  Or that those words do not mean or did not reveal plainly what was your intention.  Thus, as I have said, the analysis that I have undertaken is to assess the gravity of your offences.  Plainly, this was a serious example of the always serious crime of kidnapping.  I say this, notwithstanding the brevity of the crime due to you being thwarted by the victim escaping, but you were persistent and in the face of others coming to her aid, you attempted to drive her off.  You then drove off yourself.

25In the end, I am well satisfied, that is to the criminal standard beyond reasonable doubt, that you had in your mind a sexual assault of the victim.  This is important in my understanding of the gravity of your crime, the one you are charged with and pleaded guilty to, being kidnap.  Your moral culpability of that crime which is high and what risks you present for future offending which were assessed by Ms Lechner as being moderate to low.  It is clear that you were not yourself that afternoon.  You had been served with an apprehended violence order during the previous evening.  You told the psychologist that you attended court that day and then left in your car, aimlessly driving until you got to the Cobram Showgrounds.  You could not have known that the victim would pass by, but when she did, you quickly moved into your criminal acts.  There was no planning.

26As to your personal circumstances Mr Kelberg, you turned 31 in custody after your arrest.  You are the eldest of five children.  You were raised in the northern suburbs of Melbourne, moving home and school frequently.  Your parents separated when you were in your twenties.  Thereafter you had little to do with your mother or younger siblings.  You describe your father as being angry a lot when you were growing up.  After your parents separated, you continued to see your father.  You did not, in my view, have anything like an ideal upbringing.  But it was not at a level of dysfunction or deprivation that often is the case in matters before this court.  As to your father, it seems he told you not long before this incident that his brother was in fact your biological father, as a consequence of an affair between your mother and his brother.  This was devastating news to you.

27After leaving school, you had some work including twelve months of a plastering apprenticeship.  You met your long term partner around 2007, then moved with her to Cobram.  You have three children, all under the age of seven.  You worked as a farm labourer in Northeast Victoria for eight years, up until your arrest.  This is to your credit.  It gives me some confidence that you can re-establish yourself.  As mentioned, you and your partner had separated in the preceding weeks before the offending.  Ms Lechner wrote of that separation in these terms:

"Mr Kelberg stated that his relationship with Serena was okay for the first five years.  The second five years went downhill and we slowly grew apart.  I drank alcohol.  I was a home dad, no real family or friends.  Both of us cheated at the end of the relationship.  I went off the rails.  I had a hard time dealing with her having another relationship.  I went to the doctor and was getting antidepressants.  I wanted to work it out for the kids, but it got worse and worse.  The couple separated and his offending occurred shortly thereafter".

28I have taken into account what your ex-wife said of you not being yourself in her statement to the police.  Alcohol is not a problem for you.  You told Ms Lechner of sexual abuse of you when you were yourself quite young, by a female cousin who was aged 16 or 17.  Thereafter, you have had age appropriate sexual partners, mostly women, occasionally men.  You have formed a new relationship, notwithstanding that you have been in prison.  You say this woman is the love of your life and you intend to settle with her in Melbourne on your release.  The availability of housing with her, her personal support and the general circumstances are likely to help you overcome the end of your previous relationship.  All of this gives me confidence in your ultimate rehabilitation.

29Ms Lechner noted that you were stressed and depressed by your current predicament and in fear, as it were, of the sentencing day approaching.  All of this is understandable, but is not close to the level of an impaired mental functioning that would lead to a sentence other than that of imprisonment.  That is, you would not satisfy s.C2 relating to the effect of imprisonment on you.  You were seen by a neuropsychologist Ms Kennedy.  She did a full array of tests.  She concluded you were of average to low intelligence, but with marked variances in the sub-scales of visual and verbal memory and processing.  You do not have an acquired brain injury arising from a motor vehicle accident at the age of 18, or other hits to your head thereafter.  Ms Kennedy also noted your anxiety and stress symptoms attributable to your current predicament. 
Ms Lechner described your immense shame and regret.  Your own letter written in prison expresses your shame and remorse for what you did. 

30I am prepared to conclude that you are genuinely remorseful and thus, this mitigates and adds to my confidence that you can recover, reform and re-establish.  In respect of all the expert medical psychological material, together with the circumstances of the offending, together with what your wife said about you not being yourself, expressing ideas of suicide and the like, this in my view does not amount to an impaired mental functioning, that is causally connected to the commission of the offence and one that substantially reduces your culpability.  You were not yourself and that probably goes some way to explain what went on, but it is not sufficiently causally linked and it certainly does not substantially reduce your offending.  It is not an excuse.  It only amounts, if anything, to a broad explanation.

31Also, these matters do not substantially or compellingly establish that I am justified in not making an order for imprisonment.  Thus, the provisions of the Sentencing Act read out at the beginning of the sentence are not made out.  You have one previous court appearance in 2007, but is not relevant, save that you did negotiate the community corrections order without issue and have not been in any trouble since.  Thus, this is a matter that is out of character and that also goes to your prospects of rehabilitation which I find to be positive.

32Your counsel submitted that the time you had served on remand being 377 days, was sufficient incarceration and that I should make the findings that are set out in the Sentencing Act, s.5 of the Sentencing Act and thus, order that you be placed on a lengthy community corrections order.  The submission was that a community corrections order, in effect, could simultaneously operate as additional punishment and also facilitate your rehabilitation.  He said treatment in particular directed to your mental health was what was required.  If it was successful, it is likely that you would be a contributing member of our community.  The prosecution submitted that the only appropriate sentence was one of further imprisonment, with the fixing of a non-parole period. 

33In my view the seriousness of your crime, its grave impact on the victim, the effect of the crimes of this kind on the community and on the ordinary lifestyles and members of the community, both the young and their parents, in particular, means that the only proper and just sentence is one of imprisonment, with a non-parole period fixed.  I will allow for the potential for parole.  It is for others, not me, to determine whether you get parole.  For my part, I would hope that a sex offenders course is offered to you, either in custody or on release or both and that you take it up.  My sentence must reflect the operation of individualised sentencing.  That is, punishing you and you alone for what you did, no more and no less.

34I have had regard to other sentences for kidnapping, but I am mindful of what the High Court said in Dalgliesh, emphasising as I have said, that individual sentencing is what is required.  But what was said by Justice Priest in Hanna at paragraph 88 is helpful, but it is a very general guide.  Mr Cordy quoted this and I repeat it.  It says:

"Further, having regard to current sentencing practices, I cannot see that the individual sentences, total effective sentences or the non-parole period are out of step with current practices".

35That is in the case that the court was there dealing with, where a sentence of seven years was imposed for kidnapping.  Kidnapping often culminates in an ensuing period of false imprisonment with or without the infliction of injury.  Often, offences of kidnapping for ransom, which thankfully are rare, often attracts sentences of imprisonment in "Double figures".  As do those offences of kidnapping which are accompanied by rape or sexual offending and His Honour there referred (indistinct words) case that I raised in the course of the plea, but he also refers to the case of L Wylie, a sentence that I imposed after trial.

36Total effective sentences of eight years or nine years imprisonment are not unusual for payback offences.  Any sentences of imprisonment exceeding seven years to a shade under ten years are not uncommon, generally for kidnapping and associated offending.  The individual sentence of seven years imprisonment imposed for the charge of kidnapping is well within the range open in the proper exercise of the discretion in that particular case.

37However, I must sentence you on the basis of what you did, which I have described thoroughly, but also who you are and the fact that this does appear to be a crime out of character and one that was brief in its conduct.  But before moving to announce the sentences, the prosecution made an application for forfeiture of the ute used in the crime.  Mr Lynch contended my discretion should be exercised against the making of such an order and pointed out the car was purchased in 2017 with a loan, it was not paid for I should say by your gains.  He said it was the only asset that you had and it was important to you. 

38The prosecutor contended that it was the car that enabled the crime and all other matters raised by Mr Lynch, ought not lead to the discretion being exercised in your favour.  No doubt a car is a valuable, if not an essential asset for a working man like you, Mr Kelberg.  However, it was the very instrument of this criminal conduct.  There is no one else who has an interest in the car, save for the bank.  In the end, I consider that I should order forfeiture of this car as being property used in the commission of this crime.  I have well considered the matters raised by Mr Lynch and having come to the conclusion the car should be forfeited, I revisited the sentence in light of this adverse order.

39Mr Cordy also submitted that I should exercise my discretion to cancel your licence and disqualify you from driving.  In my view, this offence of a nature that ought see your licence cancelled and disqualified, especially given the length of the sentence of imprisonment that is proposed.  I decline to make an order relating to the licence.  Please stand Mr Kelberg. 

40Doing the best I can in respect of this crime, for committing the crime of kidnap, you are sentenced to five years imprisonment.  I fix a minimum non-parole period of three years and three months.  Had you pleaded not guilty to this offence, I would have imposed a sentence of six years and three months, the minimum non-parole period of four years and six months.  You have already served 377 days in prison.  This figure having been reckoned, I now declare that it is part of the sentence that I have just announced.  I will ensure that this declaration is entered into the records of the court, so that the prison authorities can be left in no doubt, that you have already served 377 days of the sentence that I have just imposed.  I make the order relating to the forfeiture of the car.  Is there any other orders required?

41MR CORDY:  Four, six, four.

42HIS HONOUR:  Sorry.  The prosecution has made application that you submit to a forensic procedure to obtain from you, a sample from which your DNA can be extracted.  I have considered that application and I intend to grant it.  The reasons for that are because of the seriousness of the offence that you committed and that it is in the interests of justice that the order be made and that your DNA be held on a database.  Mr Kelberg, you need to understand that at the time the authorities come to take the sample, that if you do not cooperate, then the prison authorities or the police can use reasonable force to obtain the sample.  The way through it is to cooperate.

43MR CORDY:  There was also a disposal order sought, Your Honour, for some miscellaneous items, that's the towel and some clothes.

44HIS HONOUR:  Disposal order will be made in relation to various clothing items.

45MR CORDY:  As Your Honour pleases.

46HIS HONOUR:  Thank you.  Is there anything further?

47MR LYNCH:  No, Your Honour.

48HIS HONOUR:  I thank counsel for their very considerable assistance in this matter. 

49MR LYNCH:  May I speak to my client at the back of the court when Your Honour finishes?

50HIS HONOUR:  I do not think so.  They have protocols here and they are the same as anywhere else and I am sure it will all be smooth, but this is a new court and we have already found some issues.  So you just have to go to the police station.  I am sure they will facilitate that Mr Lynch.  Those are the new days.

51I will end the link shortly.  To the complainant, the victim and her family, you might have picked up at one or two times when quoting the victim impact statement, a name got mentioned, that will be redacted from the ultimate published sentence, so do not be in any fear in that regard.  No one can publish anything that could identify you in any way.  So as I said at the time, I am not using your name deliberately and I made a - just reading something it came out.  But the reason for that, as I explained, was out of respect for your privacy and the like.  No other reason.  All right, I'll end the link to the room and adjourn the court till tomorrow.  All the auxiliary orders, we don't have them as we sit here?

52MR CORDY:  We'll ‑ ‑ ‑

53HIS HONOUR:  You'll get all those?

54MR CORDY:  They've been E-lodged but ‑ ‑ ‑

55HIS HONOUR:  Very well.

56MR CORDY:  ‑ ‑ ‑ what will happen is I'll have my instructor print them out, Your Honour, and ‑ ‑ ‑

57HIS HONOUR:  Very well.

58MR CORDY:  ‑ ‑ ‑ perhaps provide them to Your Honour for signature in chambers.

59HIS HONOUR:  Thank you.  That's satisfactory is it Mr Lynch?

60MR LYNCH:  Sorry, Your Honour?

61HIS HONOUR:  I'll sign those auxiliary orders in chambers rather than bring
Mr Kelberg back when they're printed and the like.

62MR LYNCH:  Yes, Your Honour.

63HIS HONOUR:  Thank you.  Can you take Mr Kelberg down. 

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