Director of Public Prosecutions v Kelk

[2023] VCC 96

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-21-02401

CR-22-00979

DIRECTOR OF PUBLIC PROSECUTIONS

v

KIRSTI KELK

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2023, 3 February 2023
DATE OF SENTENCE:	6 February 2023
CASE MAY BE CITED AS:	DPP v Kelk
MEDIUM NEUTRAL CITATION:	[2023] VCC 96

REASONS FOR SENTENCE

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Subject:  Criminal Sentence

Catchwords:

Legislation Cited: s6AAA of the Sentencing Act

Cases Cited:

Sentence:Imprisonment. Total Effective Sentence; 30 months imprisonment, non-parole period, 20 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Zammit	Office of Public Prosecutions
For the Accused	Ms S. Gaunt	Mr. P. Ironside

HIS HONOUR: 

1Kirsti Kelk, you have pleaded guilty to two indictments.  On indictment N10138310.1 you pleaded guilty to one charge of robbery.  On Indictment M10677727 you pleaded guilty to one charge of false imprisonment, one charge of robbery, one charge of assault and one charge of recklessly causing injury.  You also pleaded guilty to one related summary offence of committing an indictable offence whilst on bail. 

2The facts of your offending are set out in two prosecution openings, Exhibit A and Exhibit B.  I was informed by your counsel that I could treat both documents as agreed statements of fact, and I incorporated both documents into these reasons for sentence and sentence you on the basis of the facts set out therein. 

3Very briefly stated, on 11 March 2021 you, with the assistance of a friend, Aaron Zalska, enticed your victim, Amy Stapleton, into a motor vehicle and locked her in that vehicle.  You then punched and kicked her to the head and face.  While doing this, you stole her handbag.  You told her not to contact the police and threatened both your victim and her son. 

4You further assaulted Ms Stapleton and forced a liquid into her mouth.  She was kept in the vehicle at a service station and scratched to the face and punched to the head. 

5On driving away, you hit Ms Stapleton in the nose before dragging her into a house in Ferntree Gully Road, Burwood.  She was kept in that house for some time before being driven away. 

6She reported this matter to the police the following day and on 13 March was medically examined and found to be suffering from a black eye, abrasions to her cheek and an undisplaced nasal bone fracture. 

7You were arrested and interviewed on 1 April 2021 and denied these offences.  You were remanded until you were bailed on 13 September 2021.  Your victim, Amy Stapleton, filed a victim impact statement.  She has been traumatised by your conduct and is fearful and anxious as a result.  I take the contents of the victim impact statement into account in sentencing you. 

8Whilst on bail for that offending, on 26 December 2021, an acquaintance, Shane Major, was confronted by you at a house in Ferntree Gully.  You elbowed and punched him to the head and knocked him to the ground.  You continued to assault him while he was on the ground and stole his car keys, wallet, which contained $350 in cash and a phone. 

9You were in the company of a male at the time who assisted with your robbery of Major.  You called Major, 'a dog' and forced him to eat cat food.  You gave him his keys back and threatened him not to report your conduct to the police.  He drove home, then went to the police. 

10You were arrested again on 20 January 2022 and when interviewed you denied your offending.  You made a sentence indication application, and I heard that application last week. 

11After hearing and reading submissions from your counsel and the prosecution, I gave the requested sentencing indication.  You pleaded guilty to both indictments last Friday. 

12Your counsel made extensive written submissions.  He outlined your personal history and personal background.  You had issues with domestic violence when you were a child.  Your parents separated when you were only five years of age.  You were educated to Year 11 level but unfortunately fell into drug abuse as a teenager, using cannabis, then speed, ecstasy and finally methamphetamine.  You developed a significant ice habit. 

13You endured violence, drug-fuelled toxic relationships.  You had sporadic employment and have two daughters aged 14 and six.  You lost custody of these girls when you were imprisoned for drug trafficking.  You admitted a significant prior criminal history which is Exhibit C.  You have a number of traffic and motor vehicle offences. 

14In 2012, you were sentenced to a community corrections order for intentionally causing injury.  In 2018, you were sentenced to another community corrections order for drug possession and trafficking, committing an indictable offence whilst on bail and possession of dangerous controlled and prohibited weapons. 

15You were fined for possessing ice and an imitation firearm in 2019.  You have regularly breached community corrections orders over the years.  You were gaoled for theft and dishonesty offences in November 2019.  In 2021, you were imprisoned for handling stolen goods and dealing with proceeds of crime, and you were imprisoned for three and a half months.  At the same time, you were convicted of trafficking methamphetamine. 

16Since being remanded on these matters, you have taken steps to attempt to turn your life around.  You underwent residential rehabilitation and counselling subsequently.  You have undertaken extensive courses in prison and returned numerous negative drug screens.  You plan to return to live with your father in Ballarat, I believe, on your release from custody.

17I take a number of factors in mitigation into account in sentencing you.  Firstly, your pleas of guilty.  By pleading guilty, you have spared the community the cost and expense of a criminal trial, and you are entitled to a reduction in sentence to reflect those pleas of guilty.  Your pleas of guilty have more value in the time of the COVID-19 pandemic which still unfortunately troubles this court.  The backlog of cases is significant and your assistance to the course of justice entitles you to a further discount in sentence.  I accept that your pleas of guilty are indicative of your remorse and I treat that as an expression of remorse.

18You have an unenviable personal history.  As I have outlined before, you had difficulties as a child and issues of domestic violence.  Your prospects of rehabilitation depend entirely upon you maintaining your drug free status.  If you are able to deal with your involvement with drugs which has plagued you over the years, you have some hope for your future.  If you do not, you will find yourself back in custody.

19You have been in custody now for some time.  Your time in custody has been made more onerous because of the effect COVID-19 has had on custodial sentences and it is likely that that will remain over the remainder of your sentence. 

20Having said all that, in my view, principles of general deterrence, denunciation of your conduct and just punishment mandate that nothing other than terms of imprisonment are appropriate for your offending.  Your counsel conceded as much. 

21You require the support that parole can hopefully give you once you are released.  Each indictment relates to separate victims, and each must be reflected in the sentence imposed.

22Both the prosecution and your counsel conceded that an aggregate term of imprisonment is appropriate in relation to the second indictment, to deal with the ongoing course of offending that related to your offending against Ms Stapleton. 

23On all charges you are convicted. 

24On Indictment N10138310.1, the one charge of robbery, you are convicted and sentenced to 12 months' imprisonment. 

25On Indictment M10677727, on one charge of false imprisonment, one charge of robbery, one charge of assault and one charge of recklessly cause injury, and on the summary offence of committing an indictable offence on bail, you are convicted and sentenced to an aggregate term of imprisonment of 18 months. 

26I order that the sentence on Indictment M10677727 be served cumulatively on the sentence imposed on the first indictment. 

27That is a total effective term of imprisonment of 30 months, and I order that you serve 20 months of that before you are eligible for parole. 

28I declare 548 days of the sentence I have just imposed has already been served, not including today, by way of pre-sentence detention. 

29Pursuant to s6AAA of the Sentencing Act I indicate that but for your pleas of guilty, I would have imposed a total effective term of imprisonment of five and a half years with a non-parole period of three and a half years. 

30Are there any other orders required, Ms Zammit? 

31MS ZAMMIT:  No, Your Honour.

32HIS HONOUR:  All right.  Do you understand that order? 

33OFFENDER:  I do.  Thank you, Your Honour. 

34HIS HONOUR:  All right.  I will terminate the links. 

35MS GAUNT:  As Your Honour pleases. 

36HIS HONOUR:  All right.  Ms Zammit, that is it.  I will adjourn now until tomorrow. 

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