Director of Public Prosecutions v Kelleher (a pseudonym)
[2019] VCC 1579
•3 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL KELLEHER (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 September 2019 | |
DATE OF SENTENCE: | 3 October 2019 | |
CASE MAY BE CITED AS: | DPP v Kelleher (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1579 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: 2 course of conduct charges of indecent assault of a child under 16 years, 1 charge course of conduct charge involving acts of gross indecency with a child under 16 years and one charge involving a single incident of indecent assault against a child under 16 years – offender was the step-father of the victim – offending in 1970s over a period of 4 years from when victim was aged 10 to 14 years – offender now aged 85 years with some mental and physical health issues – pleas of guilty of utilitarian value
Legislation Cited:
Cases Cited:
Sentence: Total Effective Sentence: 4 years’ imprisonment, with a non-parole period of 16 months. s6AAA Declaration: 5 years and 8 months’ imprisonment, with a non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Hannan | Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms K Blair | Criminal Lawyers Geelong |
HER HONOUR:
1 Michael Kelleher,[1] you have pleaded guilty to three charges of indecent assault upon a female, each of which carries a maximum penalty of five years’ imprisonment. You have also pleaded guilty to one charge of gross indecency, which carries a maximum penalty of two years’ imprisonment.
[1]The offender’s name has been replaced with a pseudonym to avoid identification of the victim.
2 The circumstances of your offending are outlined in the Summary of Prosecution Opening for Plea (Exhibit “A”).
3 The victim of all offences was your step-daughter, and the offending occurred over a period of time between 1974 and 1978 when she was aged 10 to 14 years. At the relevant time, you were aged 30 to 34 years. In the early 1970s you formed a relationship with your victim’s mother and she, you, the victim and her two brothers all began living together as a family. You would call your victim “princess” and “angel” and this made her feel special. She loved you and looked up to you as a real father figure.
4 Charge 1 is a course of conduct charge involving indecent assaults against your victim spanning the period between 3 June 1974 and 11 August 1976. It involved you taking the victim on several Sundays over that period to the carpark at Highpoint Shopping Centre. She was aged about 10 years on that first occasion. You let her sit on your lap and steer the car around the empty carpark. You rubbed your hands on her vagina on the outside of her clothing on the early occasions, and this progressed to you rubbing the outside of her vagina and clitoris under clothing. The conduct was never spoken about but, as you arrived home, you would say to your victim “remember our secret”.
5 Charge 2 is a charge involving a single incident of indecent assault which occurred when your victim was approximately 12 years old. Her mother was not at home. You were lying on your bed and your victim came into the room in order to get some money to buy lollies. There was some change on a side table and you told her that she could have all of it if she just stood there. You put your hands down her clothing and began rubbing her vagina and then inserted your finger inside her vagina and moved it around.
6 Charge 3 is a course of conduct charge involving acts of gross indecency with your victim on numerous occasions over a period of two years from 1976 until your victim reached about 14 years of age. The acts comprised you making your victim give you oral sex by sucking your exposed penis.
7 The first occasion happened after the death of her grandmother. You were lying on the bed and gestured towards your exposed penis, telling her to lick it. You told her that, if she did so, she could have all of the change on the bedside table. You then instructed her to open her mouth and put it around your penis, and you held her head and guided it towards your penis until it was in her mouth, instructing her to go up and down. You held the back of her head with one of your hands and held your erect penis with your other hand. Ultimately, your victim asked if she could go, and she went to the toilet and vomited.
8 Thereafter, you regularly had her suck your penis in this way. It would occur when her mother was not at home or if the victim wanted something, such as money or clothing. On one occasion, it occurred after she had intervened to stop you from grounding her brother. After performing oral sex upon you, the victim would vomit and wash out her mouth and scrub her teeth.
9 Charge 4 is a course of conduct charge involving indecent assault upon your victim upon numerous occasions over a period of two years, from when your victim was aged 12 to 14 years. You would regularly tell her to go to the outside toilet. You would sit on the toilet with your pants down. Your victim would have her pants down and would be required to sit on your lap whilst your penis was exposed. You would place your hands on her shoulders and she would be made to move up and down your penis, which was erect.
10 When your victim was 13 or 14 years of age she ran away with a friend in whom she confided that you made her “suck your dick”. She also told her mother around this time that you made her do “horrible things”. When her mother made enquiries of you, you claimed that, once, while you were in bed naked, you had mistaken your victim for her mother and had pulled her on top of you. When your victim was asked by her mother whether this was true, she agreed that it was true, but sarcastically also agreed that she had lied. You had threatened your victim that, if she ever revealed “the secret”, she would be sent to a girls’ home. For this reason, your victim maintained the lie and was grounded for two weeks.
11 Subsequently, when your victim was aged about 38 years, she told her sister-in-law that she had been made to suck your penis and that you used to touch her. On her 40th birthday, she told one of her brothers and his wife about the oral sex in which you had compelled her to engage. In or about October 2005, the victim’s brother confronted you with the allegations. You purported to deny them, but also asked your victim’s brother what it was that he wanted from you, and you were told to pack your bags. The next day, you rang your victim’s brother and asked him why these allegations had “been dragged up now”. You were told that it was because your victim was not handling it well and you stated “well it’s done now, so do what you have to do”.
12 In about July 2015, your victim telephoned you and called you a paedophile and asked why you had done those things to her. You stated that you did not know, but the same thing had been done to you. You apologised to your victim, stating “I’m sorry. I know I done wrong, but I can’t change things”.
13 Your victim reported the matter to police on 31 October 2016. When interviewed by police on 11 January 2017, you denied the offending except for conceding that, once, you may have pulled her head down near your penis whilst you were intoxicated.
14 You conducted a contested committal on 21 May 2018, during which your victim, her mother and brother were all cross-examined in detail. It was only after the prosecution agreed to withdraw a charge of incest that you pleaded guilty to the charges for which I must sentence you.
15 You are presently aged 85 years, having been born on 25 September 1934. You come before the court with no prior or subsequent criminal history.
16 In a plea on your behalf, Ms Blair told the court that you were one of 10 siblings. You apparently attended school to the age of 14 years and, thereafter, worked in a variety of unskilled jobs before retiring in 1989. You first married at the age of 18 years and had six children by that relationship, which ended in divorce. You have no contact with any of those children. You met the victim’s mother in the 1970s and married her in 1976, at the age of 42.
17 In 2005, once your victim’s mother accepted that the allegations made by her daughter were true, that marriage came to an end. However, your victim’s mother assisted you in a variety of ways until 2013, when she wrote you a letter stating that she would have no further contact with you.
18 After your victim’s brother became aware of the allegations and confronted you in 2005, you attempted suicide and were hospitalised for a time. When the allegations resurfaced and your victim went to the police in 2016, you again attempted suicide and were hospitalised again. A medical history summary from Dr Stephen Dudakov dated 9 October 2002 (Exhibit “3”), records a past history of having been diagnosed with depression in May 1996 and, as at the time of that summary, being prescribed Prothiaden 75 milligrams at night.
19 Also tendered at the plea hearing was a letter from Dr John Kapthuama of Newcomb Central Medical Centre dated 20 September 2019 (Exhibit “2”). He noted that you had been treated by him for at least seven years and had a long history of depression, along with a past history of prostate cancer, gout and hypertension. He stated that you suffer low moods and anxiety with insomnia and have been taking Dothep 75 milligrams for your depression for some years. He noted a brief admission to Geelong Hospital in June 2016 following a presumed drug overdose. He expressed the opinion that your poor overall mental health would be significantly worsened with any time which you may spend in prison, and that this could also have an adverse impact on your general physical health.
20 In relation to the latter, he recorded that you had suffered prostate cancer, which had been treated with a prostatectomy and had issues with blood pressure, which is relatively well-controlled by the medication, Coversyl. You also take Zocar to control your cholesterol and had previously been taking sleeping medication, but now manage without this.
21 A psychological assessment report authored by Ms Gina Cidoni was tendered as Exhibit “1”. The report is undated, but she assessed you on 24 June 2019. She noted your history of depression from an early age and your two reported suicide attempts, but noted no recent suicidal ideation. She also noted excessive alcohol use from age 18, but that you had reported no consumption of alcohol since January 2019.
22 She expressed the opinion that you suffer from a chronic Major Depressive Disorder. She also stated that, after applying a standardised screening tool to measure neuropsychological status in adults, you demonstrated a low capacity for verbal learning with a score that was borderline and, also, a borderline score indicating difficulties with processing and using visuospatial information. This tool also indicated minor difficulties with fluent use of language and a delayed memory score which was extremely low. Ms Cidoni thought this was indicative of major difficulties with recognition and retrieval of information from longer term memory stores, but noted that you did not demonstrate any difficulties with basic attention processes or speed of information processing. Overall, she thought your neurological function was in the extremely low to borderline range. However, she stated that this was not uncommon at your age and could occur without dementia or other significant neurological conditions. She noted that whilst some cognitive skills, such as verbal or reading skills, are maintained well into adulthood, other cognitive abilities, such as memory and processing speed, can decline more quickly with age.
23 Ms Blair submitted that the material before the court concerning your major depressive disorder and decline in neuropsychological function attracted principles 5 and 6 of Verdins.[2] As far as your long-term depression is concerned, I accept that it enlivens these principles. I consider that imprisonment is more likely to be burdensome for you because of your state of depression, and I accept the view of your general practitioner and Ms Cidoni that imprisonment may significantly worsen your mental health.
[2](2007) 16 VR 269
24 However, I do not consider that there is adequate evidence that your neuropsychological function is significantly impaired. Ms Cidoni administered only one standardised screening tool and your own general practitioner makes no mention in his report of any observed cognitive decline over the seven year period that he has been treating you. Nevertheless, your advanced age, which can commonly be associated with memory and processing speed issues, is clearly a very important personal factor that I take into account in sentencing you.
25 I also take into account your general physical health issues, including the necessity to take medication to maintain appropriate levels of blood pressure and cholesterol, as well as the medication for depression.
26 Ms Blair stated that, since you had undergone a prostatectomy for prostate cancer, you had suffered some ongoing issues with losing control over your bladder. I note that there is no mention of such continuing problems in the report by your general practitioner. Indeed, Ms Cidoni’s report records that you were never prescribed any medication and have had no problems since.[3] However, it is possible that you have some problems in this regard, which may or may not be related to your prostate cancer and prostatectomy. Generally speaking, I accept that being sent to prison for the first time at your age would be very onerous.
[3]Paragraph 25 of Ms Cidoni’s report
27 In sentencing you, I take into account your pleas of guilty. They were made after a contested committal and only after the matter had been set down for trial. While I accept that they have considerable utilitarian value by having saved your victim and her family being cross-examined a second time, and saving the State the expense of a trial, I have difficulty accepting them as being indicative of true remorse. This is particularly so given your denials in your record of interview. Also, as recently as late June this year, you told Ms Cidoni that you were drinking heavily at the time and you believed your were depressed and not thinking clearly. I do not regard this as indicative of a full acceptance of responsibility or good evidence that you have true contrition for what you have done. Nevertheless, you are entitled to a significant discount upon your sentence because of the utilitarian value of your pleas of guilty.
28 It seems that you did have a problem with excessive alcohol use and binge drinking. It is to your credit that, after a lengthy history of alcohol abuse, you have apparently ceased to drink alcohol since earlier this year and tried to improve your general health, as referred to in your general practitioner’s letter (Exhibit “2”).
29 Ms Blair stated that, after your relationship with your victim’s mother broke up in 2005, you ultimately moved into a retirement village in St Albans in 2006. A reference from Ms Melinda O’Brien, the former manager of the retirement village, was tendered as Exhibit “4”. She states that she has known you for four years and found you to be a very kind and helpful person. At the retirement village, you would wheel the industrial bins in and out each week, help clean the community room after events, and take weekly bread and milk orders or daily meals to other residents who were unable to manage. You were living in a street of units all occupied by women and took it upon yourself to weed, prune and sweep the gardens of the other units. However, she stated that, since news of your criminal offending came to light, you have withdrawn from the community and stopped contributing in the generous and caring way that you had been. She expressed concern for your physical and mental well-being.
30 Ms Blair stated that you are now a very isolated individual. You lead a frugal existence and pay $2,000 per month, which covers most things at the retirement village, with the exception of electricity and pay television. She indicated that, should you go to prison for any length of time, you are worried that you will lose your place at the retirement village. She stated that you have the capacity to continue paying for your unit for a period of three months but, after that, you believe you would lose your place of residence. No material from the retirement village was tendered in support of that belief, but I accept that you may well end up in an unenviable position of being homeless in the last years of your life if you live to be released from custody. I take that into account as an important part of your personal circumstances.
31 Mr Kelleher, you should be in no doubt as to the seriousness of your offending and the terrible long-term impact that it has had upon your victim and also your victim’s mother. Your victim courageously read out her very moving Victim Impact Statement (Exhibit “B”). She speaks of the pain and stress of trying to suppress horrible memories of what you did to her as a child, the impact of her mother not believing her, and the vulnerability that she carried all those years without telling anyone else, such that it ultimately impacted adversely upon her relationship with her husband and her own children. She describes how she is now lost and alone and has made multiple attempts to commit suicide, and every day is a struggle for her.
32 In a Victim Impact Statement tendered as Exhibit “C”, your victim’s mother stated how you breached her trust and ripped her family apart. She describes how hard it has been for her seeing that her daughter’s trust in everyone is broken and she blames herself because she brought you into her life.
33 Mr Kelleher, your victim loved and trusted you. This type of offending against a child, in what should be the safe haven of her own home, is perhaps the most insidious sexual offending against any child. It occurred over a period of four years, just as your victim was developing her sense of sexuality and working out her place in the world. You abused her for your own sexual gratification, and that is a despicable breach of trust towards someone who was entitled to expect your love and protection. She has nursed her deep hurt for decades, and the fact that she ultimately made complaints to the police so many decades after the offending shows the depth of the psychological wounds you inflicted upon her as a vulnerable, confused child.
34 There are aggravating features of your offending, quite apart from the breach of trust. You lured her with lollies and money and, later, the ability to buy things that she wanted, implanting a false impression that she was special and telling her to keep it all a secret. You later threatened her that she would be sent to a girls’ home if she told anyone. Your offending overall was not isolated or spontaneous. It became a confusing and horrible part of your young victim’s life with significant regularity over 4 years as you used her perversely for your sexual gratification. There was nothing opportunistic about it. Your look or gesture towards your victim made it clear to her what you wanted and what she was expected by you to do. She was in a very vulnerable situation where her mother was your partner. Your moral culpability for this offending is high.
35 The law recognises the vulnerability of the victims of sexual offending like yours, particularly where the victim is a young child. It acknowledges that the confusion, hurt and erosion of self-esteem, together with the complexities that the impact of revealing your abuse would have on other members of the family, mean that many victims do not ever complain or take a long time to complain. The law also recognises that the impact of your offending can be devastating and life-long, as indeed your victim has described in her Victim Impact Statement.
36 Unhappily, sexual abuse of children is all too common and very prevalent by members of a child’s household. In sentencing for these offences, this Court must denounce your conduct and give emphasis to the principle of general deterrence so that others who are minded to offend in the way that you have done will know that they will meet with appropriate punishment. Victims must be vindicated and know that they are in no way to blame for what they were made to do. Your victim was an innocent 10 year old child when you first started to abuse her. You took away her innocence and the wrong is all on your part.
37 Obviously, this offending occurred many decades ago. Had it occurred in more recent times, the maximum penalties for the offences would be very much higher. For example, causing a child to perform oral sex upon you or inserting your finger in her vagina, now would be charged as acts of sexual penetration which may carry maximum penalties of 10, 15 or 25 years’ imprisonment, depending upon the age of the child and the circumstances, such as whether the child was under a perpetrator’s care, supervision or authority.
38 Although I must sentence in accordance with sentencing practices now, the principle of equal justice requires that I should take into account the sentencing practices at the time of your offending insofar as they can be ascertained,[4] although neither party referred me to any sentences imposed in cases of sexual offending back in the 1970s. I must also have regard to the maximum sentence on each charge at the time of your offending as a relevant yardstick. Thus, for example, Charge 3, which is a charge of gross indecency which involved you making the victim perform oral sex upon you on numerous occasions, even though it is a course of conduct charge, carried a maximum penalty of two years’ imprisonment at the time of your offending in the 1970s. Also, Charges 1, 2 and 4, committing an indecent assault upon a female, even where the charge is a course of conduct charge, as is the case with Charges 1 and 4, carried a maximum penalty of five years’ imprisonment at the time of your offending. Now, there is a much greater understanding of the impact that offending like yours has on child victims, and that is reflected in the much higher penalties that apply today.
[4]Stalio v The Queen (2012) 46 VR 426, 440-1 [52]-[53]; Bromley v The Queen [2018] VSCA 329 [49]-[50]
39 The other relevant factor is that there has obviously been a long delay between the time of your offending and the date of you being sentenced for that offending. Long delays in cases of sexual offending against children being brought to the attention of police are not uncommon. You are now 85 years old. You have had the benefit of your offending being concealed for many years and not suffering the stigma of disapproval that comes with being a convicted child sex offender, which you would have suffered for decades had your offending been brought to light promptly. On the other hand, the delay means that the court is aware of two things: not only the impact upon your victim over all that time, but also the fact that you have not further offended, which is an important factor in assessing your prospects of rehabilitation. Indeed, I note that Ms Cidoni assesses you at a low risk of re-offending. Perhaps this is not surprising at your age, particularly given a number of mental and physical health problems to which I have referred. Also, your counsel stated that you had been a very heavy consumer of alcohol in the past, even to the point of blackout, but have been abstinent since the beginning of this year. If such abstinence continues, I consider that it, too, is likely to reduce the risk of you re-offending.
40 As I have mentioned, Charges 1, 3 and 4 are course of conduct charges. This means that they involve more than one incident of the offence charged. This type of charge is common for sexual offending, particularly involving children where the same acts of offending are repeated and the child may have difficulty defining dates with precision because of the similarity of offending that has occurred on multiple occasions over a lengthy period of time. An offender receives the benefit of being sentenced on only charge relating to multiple acts instead of being sentenced on multiple charges relating to each individual act. The benefit is that the sentencing Judge is confined to imposing a sentence in accordance with only the one maximum penalty applying to the course of conduct charge, albeit that the sentence must reflect the totality of the offending and must not exceed the maximum penalty prescribed for the offence charged as a single offence.[5] Nevertheless, as the sentence imposed must reflect the totality of the conduct for that charge, sentences for course of conduct charges are usually higher than sentences imposed for the same sort of offending which is charged as a single incident. However, as I have said, the maximum penalties which applied back at the time of your offending are low compared to present penalties and hence, by present day standards, taking all matters in to account, the sentence may well appear to be very low.
[5]s5(2F) Sentencing Act 1991 (Vic)
41 Obviously there can be a range of conduct comprising indecent assault. In my view, the conduct on Charge 3, whereby the complainant was made to perform oral sex on you on multiple occasions, and the conduct on Charge 4, whereby you would rub your exposed penis against your victim’s exposed vagina while she was sitting on your lap in the outside toilet, fall on the upper end of seriousness of the spectrum of conduct which comprises acts of gross indecency and indecent assault respectively.
42 In sentencing you, I am very mindful of your advanced age and your mental and physical health issues to which I have referred. Neither of these factors on their own determine the amount of the sentence to be imposed, but I am conscious in your case that imposing a sentence of imprisonment with a non-parole period may well have the effect that you spend the remainder of your life in prison. This is clearly a very serious consideration when determining the sentence to be imposed. On the one hand, it is clear that old age and poor health should not justify a sentence which is inappropriately low but, on the other hand, a Court may need to exercise some compassion by recognising the real prospect that you may not live to be released.
43 The principles of denunciation, general deterrence and just punishment must remain the primary sentencing principles. Generally, where the offending involves, as yours does, repeated acts of sexual transgression against a child over a number of years there would be a need for an emphasis upon specific deterrence as well. However, given the passage of so many years without any evidence of further offending and my acceptance that your risk of reoffending at your advanced age is low, the emphasis upon specific deterrence does not assume the weight that it might otherwise have done.
44 In sentencing you, I must also take into account the principle of totality. Whilst, overall, the offending is very grave because of the number of acts involved over a 4-year period, together with the gross breach of trust involved and the use of inducements and threats, I do take into account that your offending on Charge 2 occurred during part of the period of your offending on Charge 3, and that the period of your offending on Charge 3 coincides with the period of your offending on Charge 4. However, there can be no doubt that the seriousness of your offending, overall, must warrant an immediate custodial sentence. I reject your counsel’s submission that a wholly suspended sentence would be appropriate. In my view, a head sentence with a non-parole period is required in order to adequately reflect the gravity of your transgressions and give effect to the principles of denunciation, general deterrence and just punishment. In recent times, the Court of Appeal has indicated that it is appropriate for a sentencing court to take into account its present understanding of the devastating impact that offending like yours has caused, even though such an understanding may not have been part of the sentencing process at the time your offending occurred.[6] As I have stated, the terrible long-term effects of your offending upon your victim are evident from her Victim Impact Statement.
[6]Bromley v R [2018] VSCA 329 at paragraph [51]
45 The factors which I have taken into account in your favour, include your pleas of guilty, your advanced age, your otherwise good character and the long delay. These must be balanced against the need for the sentence to properly reflect the purposes of denunciation, general deterrence and just punishment. These are crucial purposes when it comes to sentencing for the sexual abuse of children which is a scourge on our society.[7] Those who are minded to offend against children in this way must be discouraged by courts demonstrating the serious consequences which will flow from such violations. Thus, it is important that your own personal circumstances do not detract from the gravity of your offending so as to result in an inappropriately low sentence.[8]
[7]DPP v Dalgliesh (a Pseudonym) [2017] 19 ALJR 1063, 1074 (paragraph [57])
[8]Director of Public Prosecutions v Toomey [2006] VSCA 90 at paragraph [14]; Bromley v R (supra) at paragraph [70]
46 As I intend to impose a sentence of imprisonment on Charge 1 and Charge 2, you fall to be sentenced as a serious sex offender in relation to Charges 3 and 4. This means that pursuant, to s6D of the Sentencing Act, in imposing the sentences on Charges 3 and 4, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed, and in order to achieve that purpose I may impose a sentence longer than that which is proportionate to the gravity of the offence. However, as I have already stated, by reason of your lack of offending since the offences for which I must sentence you, your advanced age and your mental and physical health problems, I do not consider that you do pose a risk to the community. In addition, the prosecution has not sought a disproportionate sentence and I consider that to be an appropriate position for the prosecution to adopt. Accordingly, I do not propose to impose a disproportionate sentence. However, I will cause to be entered in the records of the Court, in respect of Charges 3 and 4, that you have been sentenced as a serious offender.[9]
[9]Sentencing Act 1991 (Vic) s 6F
47 Pursuant to s6E, the term of imprisonment imposed on a serious offender must be served cumulatively upon other sentences of imprisonment unless otherwise directed. In the interests of totality and an overall just sentence, I do propose to otherwise direct.
48 By reason of the sentences which I intend to impose, you must also be registered as a sex offender pursuant to the provisions of the Sex Offenders Registration Act 2004. Your reporting period as a registered sex offender is for life.
49 In determining the non-parole period to be imposed, I have taken into account your advanced age and health issues, the real and confronting possibility that you may not live to be released, your social isolation and the risk that you may lose your current accommodation. These factors have caused me to set a relatively low non-parole period.
50 On Charge 1, you are convicted and sentenced to be imprisoned for a period of 18 months.
51 On Charge 2, you are convicted and sentenced to be imprisoned for a period of 10 months.
52 On Charge 3, you are convicted and sentenced to be imprisoned for a period of 18 months.
53 On Charge 4, you are convicted and sentenced to be imprisoned for a period of 2½ years.
54 The base sentence is that imposed on Charge 4. I direct that 6 months of the sentence imposed on Charge 1, 3 months of the sentence imposed on Charge 2, and 9 months of the sentence imposed on Charge 3 be served cumulatively upon the base sentence and upon each other. The total effective sentence is thus 4 years and 3 months’ imprisonment.
55 I direct that you serve a period of 16 months before becoming eligible for parole.
56 I declare a period of 9 days pre-sentence detention to be reckoned as time served under the sentences imposed this day.
57 Pursuant to s4646ZFAAA(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with Subdivision 30A of Part 3 of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. I consider that this order is warranted by reason of the seriousness of the circumstances of your offending.
58 You need to understand, Mr Kelleher, that if you do not cooperate with the taking of a swab of saliva from inside your cheek, then police may use reasonable force to enable that forensic procedure to be conducted.
59 My Associate will hand to you a document setting out your reporting obligations under the Sex Offenders Registration Act. Would you please sign to acknowledge that you have received that.
60 Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the total effective sentence imposed would have been 5 years and 8 months, with a non-parole period of 3 years.
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