Director of Public Prosecutions v Kellway (a pseudonym)

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE

CRIMINAL DIVISION

Revised Not Restricted

Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

SEAN KELLWAY (A PSEUDONYM) ROSE DONALD (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	12 November 2021 – 27 April 2022
DATE OF SENTENCE:	12 May 2022
CASE MAY BE CITED AS:	DPP v Kellway (a pseudonym) & Anor
MEDIUM NEUTRAL CITATION:	[2022] VCC 661

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW – Sentence

Catchwords: Negligently cause serious injury – depravity of the offending – breach of duty of care – serious example of negligently cause serious injury offending
CasesCited: Shi Chi Mok v The Queen [2011] VSCA 247; DPP v Weston [2016] VSCA 243; Worboyes v R [2021] VSCA 169; Rossi v The Queen [2021] VSCA 296; R v Verdins, Buckley & Vo [2007] VSCA 102; Bugmy v The Queen [2013] HCA 37
Sentence:Kellway: Convicted and sentenced to six years’ and three months’ imprisonment with a non-parole period of four years’ and six months’ imprisonment.
Donald: Convicted and sentenced to three years’ and nine months’ imprisonment with a non-parole period of two years’ and six months’ imprisonment.
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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. Dickie	Director of Public Prosecutions
For Accused Kellway	Mr D. Gibson	Victoria Legal Aid
For Accused Donald	Mr M. Casey	Gallant Law

COUNTY COURT OF VICTORIA
250 William Street, Melbourne

HIS HONOUR:

1Rose Donald1 and Sean Kellway2, both of you have pleaded guilty to the single charge of negligently causing serious injury to Charlie Lynas3. The charges were on Indictment C1912761. The maximum penalty for this offence is 10 years' imprisonment.

2The pleas of guilty were formally entered into the records of the court on 12 November 2021. You were both released on bail to facilitate the preparation of specialist reports and other plea materials.

3Mr Kellway, you admitted your prior criminal history. The plea hearing for you, Mr Kellway, took place on 1 February 2022. The plea hearing for Ms Donald was listed for 17 March 2022. Ultimately, the plea hearing took place on 27 April 2022.

4Mr Kellway, on 1 February 2022, you were remanded in custody until 17 March 2022, and have remained in custody until today, the day you are sentenced. Ms Donald, you were placed in custody on 17 March 2022 and have remained in custody on remand until today.

The circumstances of the offending

5The prosecutor tendered the Prosecution Opening for Plea Hearing dated 15 October 2021. It was Exhibit “A”. The prosecution opening was read into the record of the court on 12 February 2021. It is 20 pages in length. Counsel on behalf of both accused persons accepted the contents of the document as an accurate and fair opening. Further, a booklet of photographs was also tendered. The book of 158 photographs was Exhibit “B”.

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6After viewing the booklet of photographs, I requested the prosecution to obtain a further opinion from the medical examiner, Dr Brys, as to the cause of the injuries to Charlie Lynas shown in the photographs numbered 4,89,145, and 150 of Exhibit “B”.

7An email dated 6 December 2021 from Christina Teague of the OPP to the court and all representatives of the accused persons set out Dr Brys's response as follows:
'I described all the injuries in those images and provided an opinion on mechanisms and timing. I don't think I can be more specific. If asked whether a particular object for example caused an injury such as a belt or a stick, I may be able to provide a likelihood, but not exclude other objects. A few were patterned, and the opinion in my report was that they were caused by an object of a surface of a similar shape. Otherwise, an opinion on objects used cannot be provided. In abusive trauma, mechanisms generally include, but are not limited to shoving, hitting with hands and objects, slapping, shaking, throwing, punching, kicking, and burning.'

8Following the response above, the prosecution spoke to Dr Brys. She confirmed that she could not add anything more to the injuries visible in the photographs. She said that with the genital injuries and bruises around the anus, she could not identify evidence of any sexual penetration. She said genital bruising on a child is very unusual and would be taken seriously if seen by a practitioner. She can't categorically say it arose from an assault or an assault of any particular nature. That email was Exhibit “D” on the plea.
9I accept as facts for the purpose of this sentencing as set out in the Exhibit “A”, which is to be annexed to these reasons for sentence. I will summarise the sentencing facts in these reasons for sentence.

The background

10The victim, Charlie Lynas, was born in December 2013 and was a four- year- old boy at the time of the offending against him. Charlie is the fourth child of your family

of six children, Ms Donald. Mr Kellway, you are the father of five different children and have no contact with any of them.

11In 2016 Charlie, then aged two and a half years, was identified as having developmental delays. He was clumsy, had poor communication skills, and required the assistance of a speech pathologist. By the age of four, Charlie was still not toilet trained.
12In the latter part of 2017, Ms Donald, you left your relationship with Elijah Lynas4, the biological father of Charlie Lynas. You moved from Wodonga with your two youngest children, ages two and six months, respectively. You commenced your relationship with Mr Kellway at this time. You moved to Melbourne and stayed with your sister and then your parents. Charlie remained in the care of his father, Elijah Lynas, and his paternal grandmother, Gorja Lynas5, and also with assistance from his uncle, Caleb Lynas6.
13Charlie was a happy and healthy child of normal weight and size and with no observable injuries. Life then took a dramatic and unfortunate turn for Charlie Lynas.

14In late October 2017, the Wodonga officer of the Department of Health and Human Services (“DHHS”), contacted Ms Donald asking her to take custody of Charlie. This was due to concerns over an alleged assault by Elijah Lynas against his daughter, Veronica7, later found to be unsubstantiated. On Friday 27 October 2017, Ms Donald and Mr Kellway drove to Wodonga to collect Charlie. Mr Caleb Lynas gave Charlie's health nurse medical book to Ms Donald. He did not hear from Ms Donald after she left.

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15Caleb Lynas recalls that Charlie then had a couple of bruises to the front of his legs caused by falling over, but no other injuries. He describes Charlie as healthy and eating well. Other family members and staff at his childcare centre, where he had been on the morning that he left Wodonga also describe Charlie as being a happy child and physically healthy. No bruises were apparent. Photographs of Charlie taken at that time also suggest he was well.

16Mr Kellway and Ms Donald took Charlie with them to the Reservoir home of Ms Donald’s parents. They lived with them for a period with Mr Donald and Ms Barker8, along with William9 and Dillion10, the two younger children. Ms Donald's family members, who saw Charlie on arrival to Melbourne, found him to be healthy and well.

17While they lived at Reservoir, Mr Donald observed Mr Kellway to spend more time with the children than Ms Donald. Ms Donald's sisters describe Mr Kellway as trying to take over “the father role” too much. One sister, Angelica11, saw Mr Kellway leave Charlie out a lot. Mr Kellway would push Charlie down into the lounge. He would punish Charlie by putting him in the corner and making him stay there. Mr Nathan Donald12, the maternal grandfather of Charlie Lynas observed Mr Kellway to act in an aggressive manner towards Charlie on occasions at his home.

18On 22 November 2017, Ms Donald, you attended your parent's home and left with Charlie, this is after you had already left the family home. At that time, Charlie was a healthy and happy child. After leaving the Donald home in Reservoir, both of you and the three children moved to stay with Mr Kellway's stepfather in West

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Heidelberg. The premises was a two bedroom unit with four adults and three children living in it.

19Between 10 and 30 January 2018, the two of you and the three children, including Charlie, lived in the Parkside Inn Motel in Bundoora. The period of time between 22 November 2017 and 19 March 2018 was marked by uncertain housing and basic living supports for your family. You received some intermittent support from Ms Donald's father and sisters. I am not aware of any visits or follow up consultations from DHHS workers on the welfare of Charlie Lynas from the day of his removal from Wodonga in October 2017 until 19 March 2018.
20When the Victoria Police attended at the address in West Heidelberg, where you were both living with the three children, the police notified DHHS of their concerns.

21During the period between 22 November 2017 and 19 March 2018, Ms Donald and Mr Kellway repeatedly caused injuries to Charlie either by inflicting injuries directly or supporting the other to do so. By 19 March 2018, Charlie had very extensive injuries. There were injuries on every limb of Charlie's body and almost every part of his head and torso. His injuries included bruises, some of which were patterned, scars, abrasions, and healing wounds. The physical injuries were substantial and protracted in the context of a four-year-old boy. The injuries also resulted in an ongoing psychological and developmental impact on Charlie that is substantial and protracted.
22Serious injury was caused to Charlie in circumstances where Ms Donald and Mr Kellway owed him a duty of care as parents. In your case, Ms Donald, you were his mother. Mr Kellway, you were in the position of loco parentis as his father.

23During this period, Charlie lost significant weight. This is not alleged to form part of the serious injury caused to Charlie, nor are the accused, that is the two of you, alleged you have been criminally negligent in causing Charlie to lose weight.

However, the fact that the injuries were repeatedly caused to Charlie by Ms Donald and Mr Kellway while he was in this increasingly vulnerable state, with no appropriate action being taken by either of you regarding his health and welfare is an aggravating feature.

24On 19 March 2018, after police had attended your premises in West Heidelberg. Mr Donald and his daughter, Zara13, also attended the premises and took Charlie to their home in Reservoir and fed and washed him. Their observations of his injuries and physical condition led them to a decision to take Charlie straight of the Austin Hospital at 6.30 pm that day. Charlie was later transferred to the Royal Children's Hospital from the Austin Hospital. Photographs were taken of Charlie's injuries, which of course is Exhibit “B”.
25At this stage of the sentencing reasons, I am just going to read out the findings of the doctor:
‘On Wednesday 21 March 2018, Charlie was examined by Dr Trisha Brys from the FMPS. Photographs were taken of him, and Charlie was found to have very extensive injuries to every limb and almost every plain of his head and torso, including the following:

16 identified injuries, bruises, scratches and other wounds to his head and neck, including bruising and scratching to his cheeks and both ears, and a small area of his subconjunctival haemorrhage to his right eye;

11 identified injure to his trunk; bruises and several linear scars to his left buttock, a bruise and several linear scratches to his right buttock, genital bruising, and a bruise near his anus;

swelling and bruising of his hands on both sides, including healing circular wounds on his fingers and his right palm;

four bruises on his upper and lower left arm, two bruises, including a pattern bruise on his upper right arm, and a scratch at his right wrist;

13 injuries, bruises, scratches and other wounds to various parts of his right leg and;

eight injuries to his left leg, including behind his knee.

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The bruising and scars could not be aged. All abrasions had some scab formation, suggesting they were days to weeks old. The extent and nature of Charlie's injuries suggest he had experienced trauma on multiple occasions. In over 17 years of treating children and seven years of paediatric forensic medicine, Dr Brys described Charlie's presentation as one of the worst she had ever seen in terms of extent and nature of the injuries.

Dr Brys could not exclude that one or two of the injuries might have been accidental. However, in her opinion, given the nature and extent of the injuries, more than 60 individually identified, most, if not all, had been caused by a deliberate infliction of force.

By way of example, bilateral ear bruising suggested twisting type injury and it is very unlikely to happen accidentally. Bilateral injuries and clusters of injuries are also consistent with non-accidental injuries. Hand injuries are rarely caused by accidental injury. Injuries to the hands of a child of Charlie's age may occur as a primary target of another, or as the child tries to shield parts of his body.

The bruising, abrasions, and subconjunctival haemorrhage of Charlie's right eye suggest direct blunt force trauma. The injury with scab formation, indentation, and bruising above his left eye also suggest trauma to this area. The linear injury behind his knee was likely to have been caused by an implement used to strike Charlie repeatedly across his legs. Bruising to Charlie's torso was concerning for intrabdominal trauma, but none was found.

Charlie was malnourished, he had a distended firm abdomen. His bones, ribs, scapula, and clavicle were clearly visible. His feet were both swollen. His skin appeared loose, especially around his buttocks area. He weighed
14.4 kilograms, that is the eighth percentile for his age. He appeared very hungry and was distracted if food was available.

As outlined above, Charlie's weight loss is not alleged to be part of the serious injury or due to the criminal negligence of either of you, Ms Donald or Mr Kellway

However, it is relevant to the context of the injuries inflicted on an extremely vulnerable child and the negligence of his custodians, that is the two of you, in not stopping or intervening or seeking help for Charlie.

Dr Brys's opinion was that Charlie's physical injuries impacted him psychologically and emotionally. His symptoms were consistent with experiencing severe trauma, neglect, and emotional maltreatment. This was expressed in Charlie's reactions to situations, his fear, his behaviour around food, his behaviour when investigations were done, and his attachment to strangers.

Dr Brys has found a very high likelihood that the physical injuries would go on to impact Charlie in some form or another in the future. Although it is not possible to describe the extent, in her opinion it would likely worsen his already impeded development and cause worse outcomes for him.’

26In March 2021, some three years after your offending, Charlie was assessed by a psychologist, Dr Julianne Read. Dr Read's opinion is as follows:
'Over there years since the offending against him, Charlie has shown marked improvements in his development. But he continues to present with delays and is below the level of his peers in areas of communication, social skills, and self-care. He continues to present with indiscriminate attachment behaviours indicative of disruption in his attachment system due to early neglect and abuse experiences. The aspects of his developmental delays which were congenital, and which were acquired is difficult to determine.'

27Dr Read noticed that Charlie presented with features of autism spectrum disorder and a mild intellectual disability. She diagnosed Charlie with symptoms of post- traumatic stress disorder (“PTSD”) and stated that Charlie's poor capacity to process his experiences and develop a coherent understanding of them will make his PTSD worse and more resistant to change. The psychological impact on Charlie is substantial and will be protracted.

28Charlie was not able to assist police in the investigation due to his age and his personal limitations. The only two direct witnesses of this offending were the two of you.

29On 30 August 2018, Ms Donald, you were interviewed by police. In the course of your record of interview, you sought to minimise your involvement in the injuries to Charlie. You clearly set out that Mr Kellway had struck Charlie to the head, back, and buttocks. You said Mr Kellway had struck Charlie with an egg flip, rubbed Charlie's elbow in wee on the floor and called him a 'filthy little mutt'. You told police that Kellway made Charlie put his leg up on the windowsill and smacked him with the egg flip because he had wet himself.
30The police had warrants to listen and record your phone conversations with Mr Kellway. After your record of interview, the following conversation between you and Mr Kellway was recorded. And I will read them as follows:

‘Donald: Just know that I never turned you in because you would be getting arrested right now, Sean.

Kellway: Turn me in for what, dog? Turn me in for fucking what, cunt? Tell me, turn me in for what? Turn me in for what?

Donald: For what I’ve known and for what I’ve seen. Do you really want me to tell you what you have done?

Donald: I just sat in gaol for 6 hours, you cunt. Kellway: For me?
Donald: That’s how loyal I am. I will continue to lie to the police. I won’t confess. I won’t tell them anything else…

Kellway: Tell them what you have done, little cunt. Come on, fuck face.

Donald: Tell them about exactly where you smacked Charlie. Whereabouts on his body you smacked him. They wanted me to tell them what bruise caused what.

Kellway: I put my life on hold for you and your fucking kids, cunt.

Donald: What did they want? Oh yes, he did smack him. Yes, he did put him on the window until he passed out.

Kellway: Get fucked. Fuck off until he passed out. You want to know what passed out is? Passed out. He wasn’t passed out. He was tired. Passing out is because you are hurt or something. He was tired, falling asleep, dick fucker.

[Ms Donald told Mr Kellway everyone knew she was lying to police.] Kellway: They have no proof.

Donald: You know what you done, and I do too. Kellway: What did I do then?
Donald: You turned around the other day and told me what you did to Charlie… You know what you done to him. You said the other day you just stomped on his head… We all know, everyone in this house, we all know. That’s why we had to get rid of the egg flip…

I failed as a mum to protect him. When he has got 72 bruises on his body, that’s my fault. Stitches in his bum, my fault.

Kellway : I know what I done. I belted him on the arse. I hit him with the egg flip. I know that.

Donald: You didn’t rape him.

Kellway: No, that’s one thing I didn’t do…

Donald: I have already cut my losses from my babies. They didn’t deserve to be hurt. And he didn’t deserve to be scarred for the rest of his life.

Kellway: Go tell the truth.

Donald: Yeah, you hurt him Sean, but that’s all you did…

Donald: Bruises are nothing. They are not worried about bruises now. Kellway: Bruises are scars.
Donald: If you want to turn yourself in for smacking him and using the egg flip, hop to it. Cause I have, about me. I told them I smacked him. I told them I told him to shut up. I smacked my son. I also smacked my son when he was naughty. I smacked him when he threw the Tonka truck at William ’s face.

Kellway: I done it more. Rose , I done it more. Donald: I owned up to my shit that I done’.

31In the early hours of the next morning, that is 31 August 2018, Mr Kellway was recorded saying the following:
'I might have smacked him, I might have done that. I didn't child abuse. I didn't say, "Come here, cunt, I'm gonna smack you in the head". I still gave a fuck about him. That's not child abuse. Child abuse is when you don't give a fuck about them at all, you neglect them. I still cared about that kid. Maybe I went too far, yeah, I admit it. But I'm not going take any of that shit'.

32On a couple of later occasions, Mr Kellway again queried if what he had said was child abuse and if he had done so or gone too far. On 2 September 2018, the day before Mr Kellway was due to attend the police station yet again for interview, the following exchanges were recorded between the two of you:
‘Kellway: Come on dog and say it.

Donald: It was you and I. I’ve done my part. I’m going to gaol. For the trauma of my own children, for the abuse to Charlie…

Kellway: Abuse is more than just smacking them though. Was he scared shaking there? Was he? I hit the prick, mate…

You are not a bad mother. I am a bad father.

Donald: Sean, when you look at those photos of Charlie tomorrow, no baby should look like that. That’s my baby. I gave birth to him. He was in my care. I failed to protect him…

Kellway: Abuse is more than just smacking them though. Was he scared shaking there? Was he? I hit the prick, mate…’

33On 3 September 2018, prior to you attending the Heidelberg police station, Mr Kellway , and interviewed that day, the following was recorded:
‘Kellway : Child abuse? Nup. Smacking might be against the law but child abuse? Nup. I’ll admit I smacked him. I will say that to them, but abuse? No…

I might smack them, and I might go a bit far. I’ve got a bit of me mum in me…

Donald: If all this shit is on Charlie, then good. Keep Charlie. Give my other two back. Cause I’ve done nothing fucking wrong…’

34On the afternoon after Mr Kellway , you had been interviewed by police, Ms Donald was recorded saying the following to you:
‘Donald: The only ones that know what happened to those babies are the ones who live in this house…

We should have locked ourselves in the house, kept him in the house so no-one could see him. Wrapped him up tightly and put him in the washing machine instead of beside it next time. They didn’t know about that one, did they?…

At the end of the day, the proof is that the little boy has been abused. I am just saying to take whatever we get given. At the end of the day, it doesn’t matter who takes the blame, I will still get charged’.

35On 3 September 2018, during your record of interview, Mr Kellway, you set out your own troubled upbringing. You stated you cared for the three children and did everything to keep them safe. You denied hitting or abusing Charlie. You suggested Rose's family were responsibility for Charlie's injuries. You denied any wrongdoing.

36On 3 July 2019, both of you were interviewed by police for a second time. Ms Donald , you had made a statement to police on 5 September 2018, two days after Kellway ' first interview, where you set out the assault of Charlie by Mr Kellway as follows:

·You said that you had hid Charlie next to the washing machine when the police attended, as you were concerned Charlie would be taken from you because of his bruised face. You called your parents and asked your father, 'Come and get Charlie'.
·You also said that a couple of days prior to making your statement, Mr Kellway had told you that he knew how the bruises to Charlie's face happened, as he had stomped on Charlie's head and picked him up by the cheeks and pinched them. Mr Kellway said that he was unsure how the lines happened on Charlie's cheeks.
·You had told your sister, Monica14, that Mr Kellway had kicked Charlie with his steel-capped boots, and on several occasions hit him with an egg flip on the bare bum.

37In your second record of interview, Mr Kellway, you again denied any involvement in inflicting injury or harm to Charlie. You accused Ms Donald of stomping on Charlie's head and hitting him with the egg flip.

38You were both charged with offences against Charlie Lynas and released on bail on 3 July 2019. On 30 October 2020, a committal hearing was conducted. After that hearing, the charges were resolved between the parties and a plea of guilty was entered in the County Court on 10 June 2021 to the charge on the indictment. Each of you were released on bail to your plea date.

39Unsurprisingly, there is no victim impact statement from Charlie Lynas, the victim of your criminality. It is important that in the sentencing process than an assessment and the opinions of the doctors, which I have read out, are part of the sentencing reasons. And as I have said before, I have attached the full summary

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which contains those matters to these reasons, and I will not repeat in full what the doctors have said about the injury to Charlie Lynas.

Victim Impact Statement

40There was a victim impact statement tendered in this proceeding and read into court, prepared by Mr Caleb Lynas, who's currently in court. He is Charlie's uncle and now legal guardian. The victim impact statement was dated 14 October 2021 and is Exhibit “C”. Caleb Lynas has had Charlie live with him for the last three to four years since the intervention of the police in March 2018. He described how Charlie is anxious and wary around other children or in crowds in general. He states that Charlie asks about certain people in his past life. But in the last three years, he has never asked about you once, Ms Donald, not once.
41Charlie is at a special school. Charlie has bad night tremors, and shows extreme emotional responses on occasions, lashing out physically. Mr Lynas himself works as baker, and with the assistance of his mother and sometimes his brother, Elijah, the father of Charlie Lynas, he looks after both Charlie and the two younger siblings. Mr Caleb Lynas expressed concern for the future of Charlie. That is just a summary of what he said.

Personal circumstances

Sean Kellway
42At the time of the offending, you were 27 years old, you are now 31. Prior to your plea hearing on 1 February 2022, you had been on bail. From the time you were charged on 3 July 2019 you have been on remand in custody since 1 February 2022 and, on my calculation, you have served 100 days of pre- sentence detention.

43You have admitted your prior criminal history. You have three previous court appearances for property offences of burglary and criminal damage. You received

non-custodial dispositions for that offending. Relevantly, you have previous court appearances for violent offending. In May 2011, the Heidelberg Magistrates' Court, without a conviction, you were fined an aggregate of $1000 for unlawful assault, and a failure to appear on bail.

44In August 2014 at the Wangaratta Magistrates' Court, you were convicted for recklessly causing injury and sentenced to three months' imprisonment which was wholly suspended for a period of 12 months. In April 2016 at the Wodonga Magistrates' Court, you were convicted and fined $500 for a recklessly causing injury charge. The last conviction was only 18 to 19 months before you commenced your offending in this case.

45Your parents separated when you were an infant. You are their only child. By the time you were four years old, your mother had re-partnered with your stepfather. You have four stepsiblings. You enjoyed a positive relationship with your stepfather, but only had a limited contact in more recent years. You met your biological father when you were 17 years of age. You had contact with your father for a couple of years and then the contact dropped away. You have fathered a total of five children with three different partners. You have no contact or relationship with any of those children.
46As you were growing up with your mother, you have reported she was physically abusive to you and to your siblings. Exhibit “L4” contains a number of relevant historical records of your contact with the DHS and the Austin Child and Mental Health Service in your formative years. The initial report to DHS was made by your mother when you were seven years old. Your mother reported that you were exhibiting aggressive behaviours to your siblings. Your older brother Martin was placed with your maternal grandmother. He was intellectually disabled.

47At the review in August 1997 at the Austin Hospital the file was closed, with a recommendation of couple counselling for your mother and her partner, your stepfather, and parent therapy to be continued. At that time, you were still attending school regularly.

48I note in Ms Fealy's psychological report that you and your mother had an unusual relationship, in the sense that you both refer to each other as children or a child, 'You're behaving like a child'. There was an interdependence which was unusual. The contemporaneous reports of violence by your mother to you do not seem to substantiate what you report.

49You were tested by Mr Eddy Keir, who is an audiologist for hearing difficulties in July 2001. You were then 11 and a half years of age. The testing revealed normal hearing levels and normal phoneme discrimination and sound blending skills in a quiet environment. The hearing problem that you suffered was worse in noisy environments such as crowds and supermarkets, classrooms, etc. It was recommended that your teachers be informed of that difficulty.

50In 2001, when you were in Grade 6, you spent a term at the Austin Hospital School Social Education Program and then returned to Preston East Primary School. At your mother's insistence, you went to Northland Secondary College. The same psychologist, Susan Fealy's opinion was that you were academically very capable and that Northland Secondary College was not suitable for you. Nevertheless, that is where you attended high school. Your contact with Austin Health Services ceased in 2003.

51You were exposed to violence your mother perpetrated against your older intellectually disabled brother. He was removed by DHS or DHHS to the maternal grandparent's home. You also saw violence between your mother and her partner. This was a constant feature of your formative years.

52You completed Year 11 at Kangan TAFE in Broadmeadows. You had two children by the age of 17 to two different partners. You have no contact with either of those children. You had a six year relationship which resulted in the birth of three children. That relationship finished in 2015 and you have had no contact with those children ever since.

53You have a reasonably stable work history, having employment full-time for nine of the last 14 years. You have not worked since you were charged with this offending. You employment included machine operator, a labourer, forklift driver, and factory worker.

54In 2014, you were diagnosed and treated for testicular cancer. In 2018, you were diagnosed with chronic obstructive pulmonary disease, depression, and anxiety. You also have asthma. Throughout your 20s and including the time of your offending against Charlie Lynas, you were using cannabis and methylamphetamine.

55You were examined by Sandra Cokorilo, a psychologist, for the purpose of the plea hearing in this case. Ms Cokorilo prepared a report dated 2 November 2021, which was Exhibit “L3”. Ms Cokorilo also gave evidence at your plea. She diagnosed you as suffering from generalised anxiety disorder and PTSD and cannabis use disorder, which is severe. She also noted antisocial and borderline personality traits in you.
56On the issue of remorse for your offending, she noted the following:

'Mr Kellway stated that the only reason he is pleading guilty to the current charges is because the mother of the victim has a recording of him stating, "Everyone knows I did it", and explained he would've otherwise contested the charges. Mr Kellway denied the charges to which he is pleading guilty, stating he made admissions which were recorded, as he was unaware the mother of the child was “wearing a wire”. On further exploration of what may have motivated him to make admissions to the offender regardless of his knowledge that this statement was recorded, Mr Kellway only offered that he was affected by cannabis and methylamphetamine at the time. He expressed remorse for the fact that "it happened under my roof", adding

that, "I was the man of the house looking after her and her kids". He later remarked that if he weren't remorseful, he would have partied afterwards, but instead he has not been in trouble since, as he wanted to do right.

At a later part of the discussion, Mr Kellway seemingly after further considering the implications of his earlier statements reported that he has to state that he has inflicted the injuries as he is pleading guilty. He then stated that “I am remorseful for inflicting damage otherwise how will my report look”’.

57Whilst your plea of guilty is indicative of remorse on your part, these statements neutralise any genuine remorse on your part for this offence. You have no empathy for your victim, Charlie Lynas.

Rose Donald
58You are now 32 years of age. At the time of the offending, you were 28. You were one of five girls in your family. You have three older half-brothers who are you father's children. You describe your home life as good and described happy childhood memories to Laura Fleming, a forensic psychologist who examined you for the purpose of this proceeding.

59Ms Fleming's reports were Exhibit “M4” and “M5”. You were educated to Year 12. You told the psychologist you were a nurse graduate but that is not correct. You have reported that you were working at the time of this offending but declined to say what the nature of that work entailed.

60After you were charged, you became homeless. You were living with a friend prior to being placed on remand by me on 17 March 2022. You have had a total of seven children. The first child was born in 2005 when you were 15 years of age. That child was adopted out at birth. You have three children from your first significant relationship. Two of those children live with their father. The third child, who was the second in order, died at the age of three weeks. You have reported you commenced drug use at that time to deal with your grief.

61Your second relationship was with Elijah Lynas, the father of your victim in these proceedings and your two younger children. You have three children from that relationship. Charlie is the eldest. The two younger children were born in 2015 and May 2017. You ended your relationship with Elijah Lynas not long after the birth of your youngest child in May 2017.

62You moved to Melbourne with your two youngest children. Charlie was left behind in Wodonga with his father, Elijah, his Uncle Caleb, and their mother.

63You commenced a relationship with Mr Kellway. You had known Mr Kellway from your high school days. In the time of the offending, you admit to using cannabis and methylamphetamine. You have no prior criminal history. You have a subsequent charge of drug possession. You initially moved from Wodonga to live with your family in Reservoir. You had your two youngest children with you. Mr Kellway moved in with you.

64Due to the allegations against Elijah Lynas, which were proven to be unfounded, Charlie Lynas was removed from the home in Wodonga and placed in your care at the request of officers of DHHS. The three children, you, Mr Kellway, then left your family's home and moved to Mr Kellway's stepfather's house in West Heidelberg. There were four adults and three children living in a two bedroom residence.

65In December 2017 to January 2018, Mr Kellway, yourself, and the three children moved into a motel room. The total period of your offending was over four months. Whilst Kellway is primarily responsible for the physical actions causing serious injury to Charlie Lynas, or causing the injuries to Charlie Lynas, you also engaged in physical assaults of your son. You stood by whilst you either witnessed or knew of the assaults by Kellway on your son.

66At any time, all you had to do was ring up your own father and ask him to come and rescue Charlie. When you finally did ring your father, he did come immediately and he picked up Charlie and ultimately took him home, then to hospital for treatment.

67Dr Borg has diagnosed you as suffering from a language disorder. There is no causal link between this diagnosis and your offending. You have been assessed by Laura Fleming as presenting with symptoms of PTSD, major depressive disorder, and substance use disorder, both cannabis and methylamphetamine.

68In Ms Fleming's opinion, your depression commenced after your period of offending. The opinion of Ms Fleming and Dr Borg is that you externalise blame to agencies who did not support you with housing and other services during the time you were looking after these children. Nevertheless, you accept responsibility for your offending or your part in the offending.

69You are now abandoned by your sisters. You have had some contact by phone with your father whilst you have been in custody. The Department, that is I think it is now called the Department of Families, Fairness and Housing, have removed all children from your care and that will remain the case for the foreseeable future.

Sentencing considerations

70The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, and denunciation of your actions, and the protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it, and your personal circumstances. I'm also required to balance the interest of the community, denouncing your criminal conduct with the interest of the community in seeking to ensure, as far as possible, that you as offenders are rehabilitated and reintegrated into society.

71I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particular, but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for sentences at the time. I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and each of the cases is distinguishable from your case, as indeed they are from one another.
72I have considered the cases of Shi Chi Mok v The Queen [2011] VSCA 247 and DPP v Weston [2016] VSCA 243. In Shi Chi Mok's case, the negligence alleged was based on one incident of momentary inattention causing serious injury to a child. In the case of Weston, the alleged offending was over a four day period, resulting in serious injury. In that case, there had been some 'rough handling' of the victim which was contextual behaviour to the offending.

73This case is different from those cases, in that the length of time over which the offending behaviour in the form of persistent negligent behaviour by a biological mother and a loco parentis de facto partner resulted in serious injury to Charlie Lynas. The offending in this case is not a case of momentary inattention, rather the offending is persistent and consistent and sustained maltreatment by both of you over a period of four months.

74Nevertheless, I take into account the current sentencing practices for the charge of negligently cause serious injury. It is one of the considerations I take into account in this sentencing process.

75A committal was conducted in this matter, and the charge against you both were resolved after that committal hearing. You have pleaded guilty to this charge. Whilst the plea was finalised after the negotiations, I do not accept that it could be described as an early plea in this case.

76Nevertheless, it has obviated the need for your victim and other witnesses around the case from giving evidence in court against each of you. Further, your pleas does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by both of your offending. Your pleas allow for the preservation of the court and police resources to deal with other matters, and your pleas vindicates a public confidence in the legal process set up to protect the community.
77Your pleas are also a clear acknowledgement that you accept responsibility for your criminal behaviour on this occasion. Your pleas also recognise, you both, are willing to facilitate the course of justice in the community, and I accept that your plea to this charge Ms Donald, indicates and demonstrates remorse on your part. As I have said, Mr Kellway, I am not convinced in your case.

78Your pleas of guilty also have a further utilitarian value because the plea is given at a time when due to the COVID-19 pandemic, you both have not sought to delay the finalisation of these charges by conducting a trial at some indeterminate date in the future. This is sometimes referred to nowadays as what is known as the Worboyes discount.

79The Court of Appeal in the case of Worboyes v R [2021] VSCA 169 set out a number of considerations that were particular to a plea of guilty in the course of the COVID-19 pandemic, and even more so in the sentencing process. Most recently, these considerations were reinforced by the same Court of Appeal in the case of Rossi v The Queen [2021] VSCA 296, which recited paragraphs 35 to 39 from Worboyes, and I will read those:
'We therefore consider, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an

augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.’

….

80The Court of Appeal further stated:

‘For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any "discount", he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.'

81In addition, lockdown restrictions on prisoners and limited visits and the courses available to prisoners during the COVID-19 pandemic conditions in gaol have and will make your time on remand more onerous than in normal times. I take these matters into account when fixing your final sentence for this offence.

82I assess both of you as a very serious example of the offence of negligently causing serious injury. The objective gravity is to be assessed by the reference to the degree of negligence involved and the seriousness of the injury caused to Charlie Lynas. The degree of negligence in this case is high.

83At the time of the offending, Mr Kellway, you stood in the position of a father to your victim. Ms Donald, you are the biological mother of your victim. Your victim, Charlie Lynas, was a defenceless four-year-old little boy who suffered from developmental delay. The duty of care each of you owed to him was a high one, particularly after DHHS had removed him from his biological father's care and placed him into your care. The total dependence of a young child on parental adult care and protection is self-evident.

84The two of you in the position of parents to Charlie Lynas had the duty to do two things:

(i)provide the child with what he needed for a healthy development; and

(ii)to protect him from harm.

85In this case, both of you have not merely failed to protect Charlie from harm by the other, but you have been actively causing the harm, albeit by negligent conduct. This makes the breach of duty so grave.

86The seriousness of the injuries caused by each of you has been set out earlier in these reasons for sentence. The offending continued over a period of four months. Each of you knew the injuries were serious because of your attempts to hide Charlie from authorities and Ms Donald's family, and the contents of the intercepted telephone conversations between Mr Kellway after his record of interview prove your knowledge.
87This little boy was rescued from the two of you by the sharp observation of a policewoman, the policewoman who was attending your address on other matters, and the intervention of your father, Ms Donald, the maternal grandfather. Your offending is a serious example of the charge of negligently causing serious injury.

Sean Kellway
88Mr Kellway, I turn to sentencing considerations that are specific to you. You accept principal responsibility for the physical injuries, but not the sole responsibility for the injuries. You have prior convictions of recklessly cause injury, these convictions were in 2014 and 2016. The period on remand that you have served is the first time of actual imprisonment served by you.

89Submissions were made on your behalf that the Bugmy principles apply to your sentencing process. I accept that you have experienced childhood deprivation in

the form of violence from your mother and observing violence by your mother against your intellectually disabled older brother. You also experienced violence in your home between your mother and her de facto partner.

90You were appropriately referred to the clinic at the Austin Hospital by your mother, and other assessments of hearing difficulties were performed and psychological assessments were done. As I said earlier, your relationship with your mother was one where you both accused the other of being a child.

91You completed education to Year 11. You maintained consistent employment, as I said before, for a period of nine years. You were in a relationship for six years. I am not satisfied that your offending is the effects of profound childhood deprivation as outlined by the High Court in Bugmy’s case.

92Your offending occurred whilst you were using cannabis and methylamphetamine. This fact does not excuse or justify your actions. You have had a difficult childhood where you were, on your report, subjected to some violence by your own mother. Whilst this may explain your conduct to an extent, it does not excuse it. I find there is nothing in your upbringing that reduces your moral culpability for causing serious injury to a four-year-old child over an extended period of four months.

93Delay between the time of the offending and the finalisation of the prosecution charge today is four years. Part of the delay is due to the investigative process. You denied any offending in the records of interview with the police and pleaded guilty to the charge after the committal hearing. The further delay caused by COVID-19 issues in listings here at the court and the delay caused by your co- accused's finalisation of her plea material. I accept that the delay has caused you stress in not knowing what your future held. You did not work whilst you were in the community whilst you were on bail for this charge. In short, you placed your life on hold.

94I assess your prospects of rehabilitation as fair. Your biggest barrier to living a law abiding life upon release from custody is your use of cannabis and methamphetamine. Only you could do something about that matter.

95The sentencing principles of general and specific deterrence, just punishment, denunciation of your actions, protection of the community, and your rehabilitation dictate that the only appropriate sentence is a term of imprisonment with a non- parole period.

Rose Donald
96Ms Donald, I turn to your sentencing considerations that are specific to you. In your case, you are not the person principally responsible for all the assaults on Charlie. You are directly responsible for some of the assaults. For those assaults perpetrated by Mr Kellway, you stood by and did nothing about it. You are Charlie's mother. It beggars belief that you could be complicit in injuring your own child.

97Your counsel submitted that appropriate sentence was a CCO. I reject that submission. Your culpability in this offending and the extent of the injuries to Charlie over a period of four months clearly dictate that a term of imprisonment is the only proper sentence.

98I do not accept that your upbringing or the fact that you are of Aboriginal background enlivens the sentencing principles set out in Bugmy. I do accept your subsequent depression condition will make your time in custody more burdensome that a prisoner of normal mental health, and in that capacity Verdins principles are enlivened.

99I accept you are remorseful and feel shame for your offending. You also seek to blame others for the circumstances giving rise to your offending. You must accept that you could have put a stop to this offending against Charlie at any time. I do not accept that this was situational offending as submitted by your counsel.

100The control of this offending behaviour was within the reach of you and, for that matter, Mr Kellway, all the time. Both of you chose to continue with it for four months until the intervention of police and, in your case, Ms Donald, your father. The two of you were caught up in drug use and the cycle and effect it has on people.

101The delay between police interview and sentence is approximately four years. You have one charge of drug possession whilst you were on bail up until 17 March 2022. You have experienced stress awaiting the outcome of these proceedings, and you have developed a diagnosed depression in that time. You are taking medication to ameliorate your depressive symptoms. I take the effect of delay into account in fixing your sentence.
102I assess your prospects of rehabilitation as fair, based on the fact that you have a substance abuse disorder. Otherwise, your rehabilitation prospects should be good. If you remain drug free upon release from custody, your chances of rehabilitation will improve.

103You have no prior convictions. Your co-accused has prior convictions for violence. Your active part in the violence against your son is less than that of your co- accused, Mr Kellway. These factors mean that an appropriate sentence for each of you would not be the same, which is the same offence you have pleaded guilty. In short, the roles of the offending and the personal circumstance between you and Mr Kellway are different.

104Nevertheless, the only appropriate sentence for you is a term of imprisonment with a non-parole period to satisfy the sentencing principles of general and specific deterrence, denunciation of your actions, protection of the community, and just punishment.

Sentence

105Sean Kellway, on the charge of negligently causing serious injury, you are convicted and sentenced to six years' and three months' imprisonment. I fix a non- parole period of four years and six months. Pursuant to s6AAA, but for your plea of guilty, I would have sentenced you to seven years' and nine months' imprisonment, with a minimum non-parole period of six years. I declare you have served 100 days pre-sentence detention.

106Ms Donald, on the charge of negligently causing serious injury, you are convicted and sentenced to three years' and nine months' imprisonment. I fix a non-parole period of two years' and six months' imprisonment. Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to five years' and nine months' imprisonment, with a non-parole period of four years and three months’. I declare you have served 56 days pre-sentence detention.

107I have finished my sentencing remarks. This is a very sad and tragic case that could have resulted in a dreadful tragedy occurring. The experience that Charlie Lynas endured from October 2017 to March 2018 could have been avoided. These comments in no way excuse the two prisoners I have just sentenced for what they have done. However:

(i)DHHS removed Charlie from his family in Wodonga on the basis of an allegation against his father which was never substantiated;

(ii)Charlie was placed with his mother who had previously abandoned him, effectively, to the care of his father;

(iii)Charlie was a healthy and happy child with his father and family in Wodonga;

(iv)Charlie was moved to the care of Rose Donald and Sean Kellway by DHHS;

(v)Any check by DHHS on Mr Kellway would have revealed he had prior convictions for violence in 2016 and 2014;

(vi)there was no follow up or checking on Charlie's welfare between October 2017 and March 2018 by DHHS;

(vii)in my view, Charlie Lynas was abandoned by the child care system in this State to the custody of Donald and Kellway with terrible lifelong consequences for that little boy.

108In effect, DHHS placed Charlie Lynas in harm's way. We, as a community, must stand up for young and vulnerable children like Charlie Lynas or we as a community will reap a very bitter harvest.

109You can remove the prisoners. Thank you. Thanks counsel for your assistance.

110Mr Lynas, you have got a big task in front of you, and you demand all the help you can get from the services around you for that little boy.

- - -

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE CRIMINAL JURISDICTION

Court Reference:

Indictment No: C1912761

DIRECTOR OF PUBLIC PROSECUTIONS

ROSE DONALD & SEAN KELLWAY PROSECUTION OPENING FOR PLEA HEARING

Date of document:

15 October 2021

Filed on behalf of:

The Director of Public Prosecutions

Prepared by:

Abbey Hogan

Solicitor for Public Prosecutions 565 Lonsdale Street

Melbourne Vic 3000

Solicitor Code: 7539

Telephone: (03) 9603 7666

Reference: 1903719/1903720/Teague

Brief outline of offending

Between about 22 November 2017 and 19 March 2018 Rose Donald and Sean Kellway negligently caused serious injury to Ms Donald’s child, 4-year old Charlie Lynas (“Charlie”), who was in their joint care over that period. Ms Donald and Mr Kellway repeatedly inflicted injuries on Charlie and failed to take appropriate action regarding his health and welfare, causing him serious injury.

Background

At the time of their offending, Rose Donald was 28 years old and Sean Kellway was 27 years old.1 From October 2017 they were in an intimate relationship together. They had earlier been a couple when studying at Northland Secondary College. Mr Kellway is the father of five children. Ms Donald is the mother of six children.2
Ms Donald’s three youngest children are Charlie (December 2013), William (November 2015) and Dillion (August 2017). Their father is Elijah Lynas. Mr Lynas also has a teenage daughter, Amber.

1 Ms Donald was born in June 1989. Mr Kellway was born in March 1990.

2 One of Ms Donald’s children died only a few weeks after being born. Mr Kellway has also lost a child. Both have lost custody of children.

From April 2016, when he was almost 2½ years old, Charlie was identified as having developmental delays. He was referred to a speech pathologist. Multiple areas of his development required assessment and attention. He was clumsy. He had poor eating and communication skills. As a 4-year-old he was not toilet trained. He was otherwise happy and healthy. He was of normal weight and size. On 27 June 2017 he weighed 16.4kg, just above the 50th percentile for his age. He was regularly seen by professionals, who did not observe any injuries.3
Until October 2017 Ms Donald and Mr Lynas lived in Wodonga with Charlie, William and Dillion. Mr Lynas describes Ms Donald as a good mother.4 His mother, Gorja Lynas, also thought Ms Donald appeared to be a good mother.5 Mr Lynas’s brother, Caleb, was less complimentary about the parenting skills of his brother and Ms Donald, but he had never seen the children with bruises or anything that might raise concerns.6
In early October 2017 Ms Donald left Wodonga with William and Dillion. She told Mr Lynas she was going to Melbourne for a break from their relationship. Charlie remained in Wodonga, cared for by Mr Lynas and Gorja Lynas.7
Ms Donald, Mr Kellway, William and Dillion initially stayed with Ms Donald’s sister, Zara, before moving into the Reservoir home of Ms Donald’s parents, Nathan Donald and Lucille Barker.

Charlie’s move into the custody and care of Rose Donald and Sean Kellway

In late October 2017 the Wodonga office of the Department of Health and Human Services (DHHS) contacted Ms Donald asking her to take custody of Charlie. This was due to concerns over an alleged assault by Mr Lynas against his daughter Amber (later found to be unsubstantiated).8
On Friday 27 October 2017 Ms Donald and Mr Kellway drove to Wodonga to collect Charlie. Mr Lynas gave Charlie’s health nurse medical book to Ms Donald. He did not hear from Ms Donald after she left.9
Mr Lynas recalls that Charlie then had a couple of bruises to the front of his legs, caused by falling over, but no other injuries.

3 Nicola Byrne 157 / Melanie Jackel 164 / Bailea McAuliffe 171 / Dr John Moran 175 / Sue Wilhelm 180. 4 Elijah Lynas 78 / Gorja Lynas 102. Mr Lynas was born in June 1979.

5 Gorja Lynas 102.
6 Caleb Lynas 108.

Elijah Lynas 78.
Amber Lynas 112. 9 Elijah Lynas 78.

He describes Charlie as healthy and eating well. Other family members and staff at his childcare centre (where he had been the morning he left) also describe Charlie as being a happy child and physically healthy. No bruises were apparent.10 Photographs of Charlie taken at this time also suggest he was well.11

Mr Kellway and Ms Donald took Charlie with them to the Reservoir home of Nathan Donald and Lucille Barker, where they lived for a period with Mr Donald and Ms Barker, along with William and Dillion.12 Ms Donald’s family members, who saw Charlie on his arrival in Melbourne, found him to be healthy and well.13
While they lived at Reservoir, Mr Donald observed Mr Kellway to spend more time with the children than Ms Donald.14 Ms Donald’s sisters described Mr Kellway as trying to take on the father role “too much”. One sister, Angelica, saw Mr Kellway leave Charlie out a lot. Mr Kellway would push Charlie down into the lounge. He would punish Charlie by putting him in the corner and making him stay there.15
Nathan Donald observed an incident when Mr Kellway responded aggressively to Charlie spilling a drink. Mr Kellway raised his hand at Charlie but did not strike him. Mr Kellway was heard saying, “Get in that corner, you fuckin’ feral.” Mr Donald told Mr Kellway not to speak to Charlie this way. Mr Kellway said he could do whatever he wanted, as Charlie was his son.

After this incident, Mr Kellway and Ms Donald moved out with William and Dillion. Charlie remained with Ms Donald’s parents in Reservoir for about 4 or 5 weeks. On about Wednesday 22 November 2017 Ms Donald attended the house and left with Charlie. At the time, Charlie was a healthy and happy child.16

Circumstances of offending

After they left Reservoir, Ms Donald and Mr Kellway and the children intermittently stayed at Ramu Parade, Heidelberg West. This was a two- bedroom unit where Mr Kellway’s stepfather, Archie Gledson, and stepbrother, Logan Gledson, lived. From 10 to 30 January 2018 the family appear to have stayed at the Parkside Inn Motel in Bundoora/Kingsbury.17

10 Elijah Lynas 78 / Gorja Lynas 102 / Caleb Lynas 108 / Russell Guy 118 / Bailea McAuliffe 171 / A/g Sgt Donna Allen 183 / LSC Julie Morris 186 / Leah May 188.

11Gorja Lynas 102/ Photobooks 1 and 2.
12Gorja Lynas 102 / Lucille Barker 134.
13Nathan Donald 122 & 128 / Lucille Barker 134 / Zara Donald 138 / Monica Donald 148 / Angelica Donald 153.
14Nathan Donald 122 & 128.
15Angelica Donald 153.
16Nathan Donald 122 & 128 / Lucille Barker 134 / Zara Donald 138.
17Parkside Inn Motel invoices 1397.

Ms Donald would sometimes return to her parents, asking for food and other items. At one point, Charlie was left with Ms Barker for two days. In January 2018 Charlie, William and Dillion stayed with Ms Barker for three days. At that time, Charlie looked skinny to Ms Barker and eager to eat.18 Angelica Donald states that in February 2018 Charlie was skinny but did not appear to have bruises.19
Zara Donald noticed that Rose appeared abusive and argumentative after she left Reservoir. On 11 March 2018, during a phone call, Zara heard
Rose say to Mr Kellway, “We are sick of your shit all the time, getting hurt.” There was scuffling and the phone disconnected. Zara called police. When Zara spoke with Rose on 12 March 2018, Rose said all was good.20
During the period between 22 November 2017 and 19 March 2018 Ms Donald and Mr Kellway repeatedly caused injuries to Charlie either by inflicting injuries directly or supporting the other to do so. By 19 March 2018 Charlie had very extensive injuries. There were injuries on every limb of Charlie’s body and almost every plane of his head and torso. His injuries included bruises (some of which were patterned), scars, abrasions, and healing wounds. The physical injuries were substantial and protracted in the context of a 4-year old boy. The injuries also resulted in ongoing psychological and developmental impact on Charlie that is substantial and protracted.21 Serious injury was caused to Charlie in circumstances where Ms Donald and Mr Kellway owed him a duty of care.

During this period, Charlie lost significant weight. This is not alleged to form part of the serious injury caused to Charlie. Nor are the accused alleged to have been criminally negligent in causing Charlie to lose weight. However, the fact that injuries were repeatedly caused to Charlie by Ms Donald and Mr Kellway while he was in this increasingly vulnerable state, with no appropriate action being taken by them regarding his health and welfare, is an aggravating feature.

Discovery of offending and intervention on 19 March 2018

About 1.07pm on Monday 19 March 2018 police officers attended Ramu Parade, Heidelberg West for unrelated matters, when Archie Gledson invited them inside. The officers saw Ms Donald and Mr Kellway asleep together on a mattress in a bedroom. They also saw Charlie, curled on the floor asleep next to a baby’s bassinet. His back was towards the officers, but his t-shirt was slightly pulled up. The police officers saw some bruising on Charlie’s back. About 1.30pm, due to concerns over the bruising and the family being asleep in a house in the afternoon, the officers notified DHHS.22

18Lucille Barker 134.

Angelica Donald 153.
Zara Donald 138.

21 Dr Julianne Read (Report dated 31.03.21) NAE. 22 Const Andrew Moharic 193 / FC Zoe McCaig 197.

Ms Donald and Mr Kellway were concerned that police had seen Charlie. At 3.59pm Ms Donald texted her sister Zara about getting the cops to come around and do a welfare check and asked why she didn’t do it herself.23
About 5.00pm Ms Donald called her father Nathan Donald. She was crying and said “DHS” wanted to take her kids. He said he would be right over.24
Mr Donald attended with Zara. Initially, the door was not opened. Zara heard Rose Donald and Mr Kellway arguing. When Ms Donald opened the door, she was either crying or started crying. Zara recalls Rose saying that someone had “lagged them in” and police had attended. When they went inside, Ms Donald hid Charlie. After Zara asked what happened to Charlie’s eye, Rose said he had fallen off his bike. When Mr Donald asked who was doing this, Rose said, “I don’t know Dad but I’m sick of it. I smack him on the ass when he fucking pisses everywhere, but that’s it.”

Mr Donald immediately saw the bruising on both sides of Charlie’s face. He was horrified. Charlie almost jumped into his arms. Rose put a baseball cap on Charlie’s head and said, “He is not Charlie. He is someone else.” She told Zara not to let others see him.

When they took Charlie to the car, Zara noticed Charlie’s face was black and blue. When Zara asked Charlie what happened to his face, Charlie said,
“Sean said no.” Mr Donald noticed black and blue marks on Charlie’s legs.

When they returned home to Reservoir, Mr Donald carried Charlie in, trying to reassure him he would be alright. Angelica Donald broke into tears after she saw Charlie’s face. She described seeing his condition as “disgusting” and “horrible”. Monica Donald also reacted immediately and strongly to seeing Charlie’s state.25 After Ms Barker asked Charlie what happened, he repeated what he said earlier to Zara. He was shaky and nervous and appeared to be hurting.26
Charlie grabbed a handful of biscuits, putting about four or five of them into his mouth. He said he was thirsty. He was given some pasta. He started crying and said “Sorry” when he spilt his pasta. He said “wow” when he was given a blanket. Zara called her boyfriend Jack O’Shane to come to try to calm down her father. When Mr O’Shane arrived and saw Charlie, he immediately started crying. Between 5.11pm and 5.24pm Mr O’Shane took some photos of Charlie.27

23Zara Donald 138.
24Nathan Donald 122 & 128.
25Monica Donald 148.
26Lucille Barker 134. 27 Jack O’Shane 145 / Photobook

A decision was made to give Charlie a bath. When Zara saw Charlie’s undressed body, she swore. Mr Donald describes Charlie’s skin as hanging off him. He was all bones. He was covered in bruises and black and blue. Charlie kept saying “sorry”. He looked a bit dazy.28 All Zara could see were bumps, lumps, bruises and gashes everywhere. Charlie was petrified and appeared in shock. A decision was made to take him to hospital.29 At 6.29pm, on the way to the Austin Hospital, Mr Donald also contacted 000.30
About 7.50pm police officers attended the Austin Hospital, spoke with Nathan and Zara Donald, and observed Charlie.31 Photographs were taken of the bruising to Charlie’s body. The Victorian Forensic Medical Service (VFPMS) was notified. Charlie was transferred to the Royal Children’s Hospital.

About 10.00pm police and DHHS officers attended Ramu Parade. Pursuant to the Family Violence Protection Act 2008, Ms Donald and Mr Kellway were detained and conveyed to Heidelberg Police Station.32 Police examined the unit. One of the two bedrooms was occupied by Logan. The other was used by Mr Kellway, Ms Donald and the children. A double bed was pushed against the wall. William and Dillion were found in two portable cots. Charlie’s single mattress was outside.33 William and Dillion were taken into the care of DHHS and transported to the Royal Children’s Hospital for observation.

Initial conversations with police on 19 March 2018

On 19 March 2018 Ms Donald told police, amongst other things, that Charlie’s injuries were not caused by her and Mr Kellway. She said Charlie was clumsy and fell over a lot. She claimed some of Charlie’s injuries were because he tripped over and fell off his bike. She described how other injuries, including those to Charlie’s back, bottom and back of his kneecaps, as well as him having lost a bit of weight, was how he was when Ms Donald collected him from Elijah Lynas. She said it was not in her or Mr Kellway to hurt their kids. She said Mr Kellway was the best father and it was bullshit for anyone to suggest he might hurt Charlie. She spent every hour with Mr Kellway and could vouch for him not hurting Charlie.34
Mr Kellway indicated to police that Ms Donald was one of the best mothers, who would do anything for her children. He had not been a father for a while and was trying the best he could. He attributed Charlie’s bruises to Charlie’s clumsiness, riding his bicycle and falling downstairs, plus William was a bit of a

28 Nathan Donald 122 & 128.

29 Nathan Donald 122 & 128.

30 000 Call Transcript 628.

31 DSC Leah Kersing 311.

32 SC Damien Butters 201 / Const Troy Martin 204 / SC Kylie Barrett 207 / DSC Leah Kersing 311. 33 Police also returned to the unit after midday on Tuesday 20 March 2018: SC Jessica Tuohy 213. 34 DSC Leah Kersing 311 / Donald interview transcript (19.03.18) 1450.

bully towards him. Mr Kellway said Charlie now had a real connection with him. He tried to show Charlie love and give him cuddles. When asked if he disciplined Charlie if he wet the bed, Mr Kellway said of course they punish him. He gave an example of telling Charlie to put his leg up on a ledge, and a couple of times Charlie had fallen asleep doing this, spending 10-15 minutes doing so. Charlie would be made to drink a bottle of water before going to bed to teach him not to wet the bed. Mr Kellway said he had sometimes smacked Charlie on the hand, but that’s it. He had never seen Ms Donald smack Charlie, and there had only been a couple of times he and Ms Donald had not been together. He was never left alone with the children. He could not see anyone causing the bruising to Charlie, who was a beautiful boy. He said he had seen bruises to Charlie’s back, front, legs and hands, but again blamed Charlie’s clumsiness.35

Ms Donald and Mr Kellway were served with family violence safety notices and released.36

Examination of Charlie and identification of serious injuries

On Wednesday 21 March 2018 Charlie was examined by Dr Trusha Brys from VFPMS. Photographs were taken.37 Charlie was found to have very extensive injuries to every limb and almost every plane of his head and torso, including:

a)16 identified injuries (bruises, scratches and other wounds) to his head and neck, including bruising and scratches to his cheeks and both ears and a small area of sub-conjunctival haemorrhage of his right eye;
b)11 identified injuries to his trunk;
c)bruises and several linear scars to his left buttock, a bruise and several linear scratches to his right buttock, genital bruising and a bruise near his anus;
d)swelling and bruising of his hands on both sides, including healing circular wounds on his fingers and right palm;
e)4 bruises on his upper and lower left arm, two bruises (including a patterned bruise) on his upper right arm and a scratch at his right wrist;
f)13 injuries (bruises, scratches and other wounds) to various parts of his right leg; and
g)8 injuries to his left leg, including behind his knee.38

The bruising and scars could not be aged. All abrasions had some scab formation, suggesting they were days to weeks old. The extent and nature of

35 SC Kylie Barrett 207 / Kellway interview transcript (19.03.18) 1406.

36 SC Damien Butters 201 / Const Troy Martin 204 / SC Kylie Barrett 207 / DSC Leah Kersing 311.

37 Alberta Di Paolo 262 / DSC Leah Kersing 311 / Photobooks 2, 3 & 4.

38 Dr Trusha Brys 218 & CT15 (committal transcript).

Charlie’s injuries suggested he had experienced trauma on multiple occasions. In over 17 years of treating children and 7 years of paediatric forensic medicine, Dr Brys described Charlie’s presentation as one of the worst she had ever seen in terms of the extent and nature of the injuries.39

Dr Brys could not exclude that one or two injuries might have been accidental. However, in her opinion, given the nature and extent of injuries (more than 60 individually identified), most, if not all, had been caused by the deliberate infliction of force. By way of example, bilateral ear bruising suggests a twisting type injury and is very unlikely to happen accidentally. Bilateral injuries and clusters of injuries are also consistent with non-accidental injury. Hand injuries are rarely caused by accidental injury. Injuries to the hands of a child of
Charlie’s age may occur as a primary target of another or as the child tries to shield other parts of his body. The bruising, abrasions and sub-conjunctival haemorrhage of Charlie’s right eye suggested direct blunt force trauma. The injury with scab formation, indentation and bruising above his left eye also suggested trauma to this area. The linear injury behind his knee was likely to have been caused by an implement used to strike Charlie repeatedly across his legs. Bruising on Charlie’s torso was concerning for intra-abdominal trauma, but none was found.

Charlie was malnourished. He had a distended firm abdomen. His bones (ribs, scapula and clavicle) were clearly visible. His feet were both swollen. His skin appeared loose, especially around his buttocks area. He weighed 14.4kg (8th percentile for his age). He appeared very hungry and was distracted if food was available. As outlined above, Charlie’s weight loss is not alleged to be part of his serious injury or due to the criminal negligence of Ms Donald and Mr Kellway. However, it is relevant to the context of the injuries inflicted on an extremely vulnerable child, and the negligence of his custodians in not stopping or intervening or seeking help for Charlie.

Dr Brys’s opinion was that Charlie’s physical injuries impacted him psychologically and emotionally. His symptoms were consistent with experiencing severe trauma, neglect and emotional maltreatment. This was expressed in Charlie’s reactions to situations, his fear, his behaviour around food, his behaviour when investigations were being done and his attachment to strangers.40 Dr Brys found a very high likelihood that the physical injuries, would go on to impact Charlie in some form or another in the future. Although it is not possible to describe the extent, it would likely worsen his already impeded development and cause worse outcomes.41

39 Dr Trusha Brys CT47.10-14. 40 Dr Trusha Brys CT48.18.

41Dr Trusha Brys CT47.24 & 49.05.

There were no reports of Charlie being clumsy or falling and no evidence of additional injuries identified during his 8 days in hospital care or thereafter. He ate well and gained weight. Charlie’s physical injuries were not life-threatening. He was expected to and has completely recovered physically.

By September 2018 Charlie was in the care of Elijah and Gorja Lynas and back at pre-school. Mr Lynas described Charlie as always being scared, not sleeping well and being aggressive to his siblings. Charlie also repeatedly said, “sorry” for doing nothing. He had not been like that in the past.42
In March 2021 Charlie was assessed by psychologist Dr Julianne Read, who observed and interviewed Charlie, reviewed materials and spoke with others. Over the three years since the offending against him, Charlie has shown marked improvements in his development, but continues to present with delays and is below the level of his peers in areas of communication, social skills and self- care. He continues to present with indiscriminate attachment behaviours indicative of disruptions in his attachment system due to early neglect and abuse experiences. The aspects of his developmental delays which were congenital, and which were acquired, is difficult to determine.

Charlie presented with features of autism spectrum disorder and a mild intellectual disability, but also behaviours consistent with a child who has experienced significant trauma and the resultant psychological effects of that trauma. He presented with ongoing symptoms of post-traumatic stress disorder, the severity of which is difficult to define. Charlie’s symptoms, following removal from the custody of Ms Donald and Mr Kellway, included intrusion symptoms (nightmares, upsetting memories, emotional distress and physical reactivity when reminded of traumatic experiences), avoidance of trauma- related reminders, negative alterations in cognition (inability to recall features of the trauma and some evidence of exaggerated self-blame) and alterations in
arousal/activity (hypervigilance, heightened startle response). Charlie’s poor capacity to process his experiences and develop a coherent understanding of them will make his PTSD worse, and more resistant to change.

In Dr Read’s opinion, the ongoing psychological and developmental impact of the injuries caused to Charlie is substantial and protracted.

Police investigation

On 22 March 2018 police officers attempted to conduct a VARE with Charlie but this was not possible due largely to his age and limited vocabulary. Statements were obtained from some family members and others.

42Elijah Lynas 78 / Gorja Lynas 101.

From 1 July to 8 September 2018, to try to identify how the injuries were caused, police lawfully intercepted telephone communications involving Ms Donald.43 From 30 August to 3 September 2018 police lawfully recorded other conversations between Ms Donald and Mr Kellway and others.44

Interview with Rose Donald on 30 August 2018

On Thursday 30 August 2018 police attended Ramu Parade, arrested Ms Donald and took her to Heidelberg Police Station, where she was interviewed.45
Ms Donald spoke at length. She provided a chronology of how she and Sean collected Charlie from Wodonga and where they lived, moving from place to place, at times homeless, staying in a motel and relying on assistance from Haven Homes. She outlined some of Charlie’s developmental delays and how he had never put on weight. She indicated he had always been clumsy. They were frustrated by his behaviour. She did not have the patience for Charlie because he was so full-on, which is why she left him with Elijah Lynas . She said Charlie became close to Sean. When she was not home, Sean would look after Charlie. Charlie could not talk for himself. She said, “What am I meant to do one night he’s sore. “Ouch.” “Who did it?” “Daddy.” “Daddy’s not here.” “Daddy.” In the end he started seeing Sean as his dad, he came that close.”46
In one long, rambling, uninterrupted portion at the start of her interview, Ms Donald said, in summary, the following:47
a)When Charlie looked at her with his puppy eyes, indicating “Get me out of here”, she did not know what happened, but her son’s eyes told her
different and she called her father for help. She didn’t know what was wrong, but Charlie was different. He was no longer a chatterbox.
b)DHHS should not have made her take Charlie away from Wodonga, where he was close to his father. The pain had come to Charlie by being around strangers and not those who know him.
c)She went through mental depression after she lost her baby.
d)She never laid a hand on Charlie. She saw Sean smack him. She told him it was wrong. She’s sure the whole street heard her. It was not true about Charlie having his leg up to the point he passed out. They hurt him because they failed to protect him: “It was my job to protect him as a mum and I couldn’t, the three of ‘em… I asked for help and I couldn’t get it so what

43 TI transcripts 1621-2085. These included multiple calls and texts in which Ms Donald denied assaulting Charlie or being aware of injuries but at other times mentioning her failures as a mother.

44 LD transcripts: additional material (Exhibit 98).

45 DSC Leah Kersing 311 / Donald TROI (30.08.18) 2091.

46 Donald TROI (30.08.18) 2091: Q.13-20.

47 Donald TROI (30.08.18) 2091 at 2099-2116: Q.21-23.

help I received, I stuck with. And it was the wrong help because now I have no babies when all I wanted was my family together.”
e)She did not bash any of her babies, but she has seen Sean do it to Charlie. She’s seen others do it. It’s happened to her and she’s screamed out for help, but no-one has helped her. They don’t care. Her family expected her to confess or get out of their lives. It all has to stop.
f)That should not have happened to Charlie. She should not have let it happen. She should not have got scared. If only Sean went to get the milk and bread and not her: “I lied to you when I said Sean didn’t hurt
him, and I lied to myself so it didn’t hurt. But it was no good because I’m still hurting inside and out. And I am now obviously going through what my son is going through when I wasn’t home. Now my son’s not there, I am. Now I’ve become the punching bag.”
g)“Sean will never replace Charlie. You can’t do that… So I don’t know what to do, what to say, but I seen him smack him with an egg flip, smack him on his bum… Rub his elbows in his wee on the floor. And I had to clean that up. I was the one that cleaned it up.”
h)She failed protecting her kids to the point now where she’s failing herself because she can no longer protect herself from Sean . He needs help. She has asked everyone to help him. “I’m sorry” doesn’t cut it anymore. People had warned her about Sean .
i)She had never done anything wrong to Charlie except once when he fell over when riding his bike, when she was teaching him to ride while carrying her two other babies. She does not know why Sean did what he did. She knows he knows it’s wrong and he regrets it. After he hurts her, he hurts himself, but “sorry” doesn’t cut it anymore.

She also said the following, in summary:

a)“[Sean] just lost his frustration – like, took his frustration out on Charlie. Charlie got frustrated. He’d tell him to do something, didn’t do it the right way, he’d smack him.” 48
b)The first time she saw Sean hit Charlie, as opposed to verbally losing his shit, was in February 2018. She told Sean off for getting frustrated. Sean apologised. She didn’t smack Charlie or put his leg up on the windowsill.
But she let it happen.49
c)“I guess I might not have smacked Charlie, but I still feel like a criminal too. I still feel like I was the one hurting him as well…” She did not tell police initially that Sean hurt Charlie because she was too scared, and it

48 Donald TROI (30.08.18) 2091 at 2118: Q.35.

49 Donald TROI (30.08.18) 2091 at 2120-2121 & 2145-2147: Q.36-41 & Q.106-107.

was her job to protect him and she didn’t. She knows it was wrong, and he knows it was wrong.50
d)Sean was a good dad. He fooled her. “Blinded for life for love.” She should have listened to her father. She took the babies and Sean took Charlie. He loved the chance. She would walk into the room and Charlie would be in a state saying, “Sorry Daddy.” Sean would say he didn’t know why Charlie was doing that.51
e)When Charlie had an accident, and Sean rubbed his elbow into the wet carpet, Sean said, “How do you like it, you filthy little mutt?” She told Sean not to speak to Charlie like a dog. It stopped for a good couple of weeks, and she thought everything was okay. There had been no more accidents.52
f)Sean struck Charlie, including to his bottom and to the back of his head. She repeatedly found Sean hitting Charlie between his bottom and his back with an open hand. Charlie’s head would be on a pillow or he would be over a bed. At times Sean would verbally abuse Charlie, calling him a “spastic”, like his father, a “spastic little cunt” and a “pissy cunt”. She saw Sean smack Charlie across the face.
g)She told Sean to stop. She always walked in on it. She never sat by and let it happen in front of her.53
h)The second time was at the motel and she left because Sean turned on her. It was across the face and Charlie fell. Sean was going off, like he was evil with veins popping out and going Barker. She pinned Sean down. Before that, he had never hit her. But she made Charlie stand naked in front of Sean so she could point out what he’d done and asked him where the new bruise on Charlie came from. That’s when she realised he was bruised from Sean and not from being clumsy.54
i)The third time was at Ramu Parade. Instead of his hand, Sean used an egg flip. She called her father when Sean broke the handle on Charlie. He was pushing Charlie’s head into a pillow when she walked in on it. She told Sean to stop or she’d call the police or her father. He stopped, but then it went from Charlie to her and then back to Charlie. She saw Charlie with his leg on the windowsill being smacked with the egg flip because Charlie had wet himself. She threw out the egg flip afterwards.55

50 Donald TROI (30.08.18) 2091 at 2129-2130: Q.56-57.

51 Donald TROI (30.08.18) 2091 at 2143-2144: Q.103.

52 Donald TROI (30.08.18) 2091 at 2149-2151: Q.111-112.

53 Donald TROI (30.08.18) 2091 at 2156: Q.127-128.

54 Donald TROI (30.08.18) 2091 at 2160-2164: Q.145-163.

55 Donald TROI (30.08.18) 2091 at 2157 & 2166-2168: Q.130 & Q.168-179.

j)She thinks she saw Sean hit Charlie five times: twice in the motel, one over the poof, one up on the windowsill and the egg flip.
k)She hid Charlie from police officers when they were at the house because she wanted to keep him safe. She and Sean decided to keep Charlie inside because they knew about his bruises.56
l)She could not look at the photographs of Charlie when shown to her. She denied that he looked like that or had that level of bruising when he was taken away. When told there were 61 separate bruises, she said she did not do that to her son, and he did not look like that when he left. She could not explain how Charlie was so injured. She knows what she has done to her son, and no-one takes care of him like her, which leaves Sean .57
m)She suggested Charlie was already bruised when she picked him up in Wodonga.58
n)She had concerns for Charlie’s welfare, which is why she raised issues with Haven Homes and called nurse-on-call about a urinary infection. She claimed she told her GP about the bruising and was told it was because Charlie was anaemic.59 She never called police about Charlie.
o)She commended police on doing their job and how they must have a big heart because there was no way she could have sat listening to someone who had let something happen to their little human like this.60

Recorded conversations

From 12.53pm, shortly after the interview ceased, conversations were lawfully recorded between Ms Donald and Mr Kellway:61
Donald:Just know that I never turned you in because you would be getting arrested right now, Sean .
Kellway: Turn me in for what, dog? Turn me in for fucking what, cunt? Tell me, turn me in for what? Turn me in for what?
Donald:For what I’ve known and for what I’ve seen. Do you really want me to tell you what you have done?
Kellway: Do it. I don’t care anymore. If you want to turn me in, then turn me in, mate. I’ll turn you in for what you’ve done. You’ve done the same.

56 Donald TROI (30.08.18) 2091 at 2175-2177: Q.236-249.

57 Transcript (Donald ROI) 2091 at 2180-2190, 2197-2213 & 2222: Q.257-312, Q.363-457 & Q.537-540.

58 Donald TROI (30.08.18) 2091 at 2213-2218: Q.459-501.

59 Donald TROI (30.08.18) 2091 at 2222-2226: Q.541-553 & 564-576.

60 Donald TROI (30.08.18) 2091 at 2227-2228: Q.582.

61 LD transcripts: additional material (Exhibit 98).

Donald: I just sat in gaol for 6 hours, you cunt. Kellway: For me?
Donald:That’s how loyal I am. I will continue to lie to the police. I won’t confess. I won’t tell them anything else…

Kellway: Tell them what you have done, little cunt. Come on, fuck face.
Donald: Tell them about exactly where you smacked Charlie. Whereabouts on his body you smacked him. They wanted me to tell them what bruise caused what.

Kellway: I put my life on hold for you and your fucking kids, cunt.
Donald:What did they want? Oh yes, he did smack him. Yes, he did put him on the window until he passed out.
Kellway: Get fucked. Fuck off until he passed out. You want to know what passed out is? Passed out. He wasn’t passed out. He was tired.
Passing out is because you are hurt or something. He was tired, falling asleep, dick fucker.

[Ms Donald told Mr Kellway everyone knew she was lying to police.]
Kellway: They have no proof.
Donald: You know what you done, and I do too. Kellway: What did I do then?
Donald: You turned around the other day and told me what you did to
Charlie… You know what you done to him. You said the other day you just stomped on his head… We all know, everyone in this house, we all know. That’s why we had to get rid of the egg flip…
I failed as a mum to protect him. When he has got 72 bruises on his body, that’s my fault. Stitches in his bum, my fault.

Kellway: I know what I done. I belted him on the arse. I hit him with the egg flip. I know that.

Donald: You didn’t rape him.
Kellway: No, that’s one thing I didn’t do…

Donald:I have already cut my losses from my babies. They didn’t deserve to be hurt. And he didn’t deserve to be scarred for the rest of his life.

Kellway: Go tell the truth.
Donald: Yeah, you hurt him Sean , but that’s all you did…

Donald: Bruises are nothing. They are not worried about bruises now.

Kellway: Bruises are scars.
Donald: If you want to turn yourself in for smacking him and using the egg flip, hop to it. Cause I have, about me. I told them I smacked him. I told them I told him to shut up. I smacked my son. I also smacked my son when he was naughty. I smacked him when he threw the Tonka truck at William ’s face.

Kellway: I done it more. Rose, I done it more. Donald: I owned up to my shit that I done.

In the early hours of the next morning, 31 August 2018, Mr Kellway was recorded saying the following:

I might have smacked him; I might have done that. I didn’t child abuse. I didn’t say, “Come here cunt, I’m gonna smack you in the head.” I still gave a fuck about him. That’s not child abuse. Child abuse is when you don’t give a fuck about them at all. You neglect them. I still cared about that kid. Maybe I went too far, yeah, I admit it. But I’m not going to take any of that shit.

On a couple of later occasions, Mr Kellway again queried if what he said was child abuse, and if he had gone too far. On 2 September 2018, the day before Mr Kellway was due to attend the police station for an interview, the following exchanges were recorded:

Kellway: Come on dog and say it.
Donald:It was you and I. I’ve done my part. I’m going to gaol. For the trauma of my own children, for the abuse to Charlie…
Kellway: Abuse is more than just smacking them though. Was he scared shaking there? Was he? I hit the prick, mate…

You are not a bad mother. I am a bad father.

Donald: Sean, when you look at those photos of Charlie tomorrow, no baby should look like that. That’s my baby. I gave birth to him. He was in my care. I failed to protect him…
Kellway: Abuse is more than just smacking them though. Was he scared shaking there? Was he? I hit the prick, mate…

On 3 September 2018, prior to Mr Kellway attending Heidelberg Police Station to be interviewed that day, the following was recorded:

Kellway: Child abuse? Nup. Smacking might be against the law but child abuse? Nup. I’ll admit I smacked him. I will say that to them, but abuse? No…

I might smack them, and I might go a bit far. I’ve got a bit of me mum in me…

Donald:If all this shit is on Charlie, then good. Keep Charlie. Give my other two back. Cause I’ve done nothing fucking wrong…

On the afternoon after Mr Kellway was interviewed by police, Ms Donald was recorded saying the following to Mr Kellway:

Donald:The only ones that know what happened to those babies are the ones who live in this house…
We should have locked ourselves in the house, kept him in the house so no-one could see him. Wrapped him up tightly and put him in the washing machine instead of beside it next time. They didn’t know about that one, did they? …
At the end of the day, the proof is that the little boy has been abused. I am just saying to take whatever we get given. At the end of the day, it doesn’t matter who takes the blame, I will still get charged.

Interview with Sean Kellway on 3 September 2018

On 3 September 2018 Mr Kellway attended Heidelberg Police Station, where he was interviewed. He commenced by outlining his relationship with Rose and setting out his own background. He said it had been rough with Rose since they no longer had the kids, but they were sticking by each other. He loved her to death. He had lost a son and had other things taken away from him.62 The love he has for Rose is unexplainable.63
He said he suffers depression. His mother and father physically fought. He suffered trauma as a child. His mother forced him to eat soap and brushed his teeth with Jif. He had been whacked with planks of wood and hit with a vacuum over his head. He had counselling at 8 years old. He wanted to make a life for himself, so his kids could remember him for something. He has been diagnosed with CPD and previously had testicular cancer. He has moved about 70 times since 2005. He lost his job because of his cancer.64
He set out the background to picking up Charlie. He outlined their living arrangements. He mentioned how he has a good heart and has helped people.

Regarding Charlie, he said the following:

62 Kellway TROI (03.09.18) 2234 at 2236-9:Q.18-29.

63 Kellway TROI (03.09.18) 2234 at 2383: Q.925-927.

64 Kellway TROI (03.09.18) 2234 at 2241, 2236-9, 2285-88 & 2354-2357: Q.35, Q.18-29, Q.207-228 & Q.683-708.

a)He knew Charlie had bruising, as he’d been shown the photos by Rose. Not all of them were caused by them. They were caused by Charlie falling and other reasons. Sometimes he would leave Charlie home with his father. If he was guilty, he would have run away. They took Charlie out. They didn’t hide him.65 He might have seen a bruise on Charlie’s arm or on the back of his leg in March 2018.66
b)He bought Charlie shoes. It’s not like they just cared about themselves. They tried everything they possibly could to keep the kids safe. They did not “child abuse”. They did not neglect. They did everything they could for the kids to make them grow into a happy family.67
c)After they picked up Charlie from Wodonga, they taught him how to eat with a fork. He loves Charlie, but William reminds him of his middle girl and Dillion is the apple of his eye. He classes the children as his own. But there are challenges.68
d)He said Charlie was not always with him and Rose, but he didn’t have any concerns after Charlie had been left with other family members.69
e)You can’t really discipline kids at this young age. It’s illegal to smack.70 Child abuse would be smacking your kids, not feeding them, teaching
them or cleaning them properly or saying, “Come here, little cunt.”71
f)Charlie’s injured eye was caused by falling over on the concrete path.72 Other than his eye, he could not remember any injuries. On 19 March 2018 Charlie was waving and smiling when his grandfather came to collect him. If he had looked like he did in the photos when he was picked up, any grandfather would have tried to knock him out. He had no idea how Charlie got his injuries. He would never do that. He reckons Rose’s family are responsible. If Charlie had been bruised like that, he would have taken him to hospital.73 Rose smacks Charlie but he doesn’t know when. She wouldn’t abuse her child.74
g)When at the motel, they called the doctor to treat Charlie’s urinary tract infection, and again called the doctor at his father’s in mid-February.75

65 Kellway TROI (03.09.18) 2234 at 2252-55 & 2294-5: Q.53-58 & Q.270-9.

66 Kellway TROI (03.09.18) 2234 at 2390-1: Q.985-996.

67 Kellway TROI (03.09.18) 2234 at 2257-58: Q.68.

68 Kellway TROI (03.09.18) 2234 at 2261 & 2266-72: Q.53-58 & Q.89-110.

69 Kellway TROI (03.09.18) 2234 at 2262: Q.74-76.

70 Kellway TROI (03.09.18) 2234 at 2274-75: Q.117.

71 Kellway TROI (03.09.18) 2234 at 2288-9: Q.231-2.

72 Kellway TROI (03.09.18) 2234 at 2283: Q.187.

73 Kellway TROI (03.09.18) 2234 at 2296-2300, 2332-2335, 2338-2345, 2376-2378: Q.285-320, Q.519-536, Q.552-606 & Q.867-

884.

74 Kellway TROI (03.09.18) 2234 at 2388: Q.961-5.

75 Kellway TROI (03.09.18) 2234 at 2290-91: Q.238-251.

h)They made Charlie stand with his foot up on the windowsill before bed and wake him up to stop him wetting his bed. There were a couple of times Charlie fell asleep while doing that. This may have caused some bruises. He was just trying to teach Charlie because he’d been told the children had never had a father role, and all he wanted was to be a father.76
i)He could not remember ever smacking the kids. He yelled at Charlie, but more “Listen to your mum” than “You little cunt.” 77 He never smacked Charlie other than one time on the hand when Charlie went to grab a cigarette. This was in January 2018 just before moving into the motel.78
j)Charlie could have Asperger’s. Charlie had seen so much violence from Elijah, and he did not want to show Charlie that.79
k)He’s done nothing wrong. He doesn’t know why Rose would ring her father and ask him to take Charlie.80

Mr Kellway was released without being charged.

Statement from Rose Donald dated 5 September 2018 and other utterances

On 5 September 2018 Ms Donald provided police with a formal statement.81 She confirmed much of what she had said in her interview, including occasions of seeing Mr Kellway hit Charlie and verbally abuse him. She said that on 18 March 2018, the night before police attended, Charlie had an accident, after which Mr Kellway said, “You’re a chatty little cunt. Your mum isn’t cleaning it up this time.” She said Mr Kellway grabbed Charlie’s forearm and rubbed it into his urine on the floor. He said, “You like that, you like that feeling, but that’s where you will be sleeping.”

Ms Donald said that on 19 March 2018 (initially describing it as being before police attended but later as afterwards) she returned from the shops and saw Mr Kellway hitting Charlie with a metal “egg flip” that had no handle. It looked like Mr Kellway was hitting Charlie’s bottom. Charlie had no pants on. His left foot was up on the window. Charlie was urinating as he was being hit. Mr Kellway yelled at Charlie for having to clean up after he pees his pants. Ms Donald said she had a “punch-on” with Mr Kellway then, telling him this was the wrong way to deal with Charlie. She said Mr Kellway promised her he wouldn’t again. She said Mr Kellway grabbed her around the neck, after which she called her parents.

76 Kellway TROI (03.09.18) 2234 at 2308-2313: Q.371-398.

77 Kellway TROI (03.09.18) 2234 at 2313-4 & 2318: Q.400-401 & Q.420.

78 Kellway TROI (03.09.18) 2234 at 2363-2367: Q.759-797

79 Kellway TROI (03.09.18) 2234 at 2316-7:Q.417-8.

80 Kellway TROI (03.09.18) 2234 at 2330: Q.496-500.

81Rose Donald 85.

Ms Donald said she hid Charlie next to the washing machine when police attended as she was concerned Charlie would be taken from her because of his bruised face. She called her parents and asked her father to come and get Charlie.

Ms Donald said that a couple of days prior to making her statement, Mr Kellway had told her he knew how bruises to Charlie’s face happened as he stomped on Charlie’s head and picked him up by the cheeks and pinched them. Mr Kellway said he was unsure how the lines happened on Charlie’s cheek.

Ms Donald told her sister Monica that Mr Kellway had kicked Charlie with steel cap boots and, on a separate occasion, hit him with an egg flip on his bare bum.82

Arrests and further interviews on 3 July 2019

Police considered the answers in the interviews and recorded materials, prior to deciding to arrest and charge Ms Donald and Mr Kellway on 3 July 2019.83
Mr Kellway was first arrested, and then further interviewed.84 He said he was not the person responsible. If Charlie was his kid, he would say what really happened. Rose should not be allowing him to go through this. She should have said what Sean did, instead of waiting so long. She has lied for him. It wasn’t him who put the marks on Charlie. There were times he fell off his bike.

When recorded conversations were played to him, he said it was a “set up” by Rose. He denied hitting Charlie with an egg flip. He did not lay a finger on Charlie. He would have done anything for them. None of the injuries were caused by him. The kids were in his care. When told he was going to be charged, he blamed Rose, saying that she was the one who stomped on
Charlie’s head and hit Charlie with the egg flip. He had only seen her do two things. The foot on the eye was accidental. She used the egg flip a couple of times. He told her to stop. He told her to take Charlie to hospital regarding his eye. Rose couldn’t handle Charlie’s crying.

When asked if he made any attempts to get Charlie any assistance, he said it was a hard predicament as he was the father and he had abandonment issues. His PTSD is one of his big things, and he really just wanted love from Rose. Back then he would have done anything for Rose.

Ms Donald was interviewed shortly afterwards, when she said Mr Kellway had just texted her calling her a dog and saying he was getting charged. She said he was the one to make her lie. When recorded conversations were played to her, she said she’d seen Sean use the egg flip once on Charlie. She said she tried to talk

82Monica Donald 148.

83 SC Jeff Stephenson 308 / DSC Leah Kersing 311. 84 Kellway TROI (03.07.19) 2425.

to him. She called her Dad. She said Sean should be charged and not her. He did that to her son. She is missing out on her kids and facing gaol for him.85

The accused were each charged and released on bail.

Procedural history, timing of pleas and no pre-sentence detention

A brief chronology of relevant events is attached.

On 30 October 2020, after a short committal hearing at which 4 witnesses were cross-examined on behalf of Mr Kellway, Ms Donald and Mr Kellway were committed on charges including intentionally causing serious injury and reckless conduct endangering life.

From the committal until 9 June 2021 there were ongoing discussions about potential resolution. In April 2021 the report of Dr Julianne Read was provided. On 10 June 2021 Ms Donald and Mr Kellway were arraigned and pleaded guilty to the charge on the indictment. The Court must declare the sentences that would have been imposed but for their guilty pleas.86
There is no pre-sentence detention.

Impact upon those affected by the crime

Victim impact statements will be provided in advance of the plea hearing.

Maximum penalty

The maximum penalty for negligently causing serious injury is imprisonment for 10 years.87

Criminal history for Sean Kellway / No prior convictions for Ms Donald

Mr Kellway’s criminal history has been filed. Ms Donald has no prior convictions.

Ancillary orders

An order may be sought for disposal of items seized.88

John Dickie Crown Prosecutor

15 October 2021

85 Donald TROI (03.07.19) 2399.

Sentencing Act 1991 s.6AAA.

87Crimes Act 1958 s.24.
88Any draft order will be provided in advance of the plea hearing.

DPP v ROSE DONALD & SEAN KELLWAY

BRIEF CHRONOLOGY OF EVENTS

22.11.17	Period of offending commenced.
19.03.18	Offending period ceased. Detained and questioned.
01.07.18	Donald’s telecommunications were intercepted until 08.09.19.
30.08.18	Donald was arrested and interviewed. Released without charge. Surveillance device recorded conversations between Donald and Kellway until 03.09.18.
03.09.18	Kellway was arrested and interviewed. Released without charge.
05.09.18	Donald provided a formal statement.
03.07.19	Donald and Kellway were arrested, interviewed, and charged. Released on bail.
08.07.19	Filing hearing.
30.09.19	Committal mention. Adjourned to 26.11.19.
26.11.19	Committal mention 2. Committal hearing fixed for 22.04.20 regarding Kellway. Donald failed to appear (warrant issued).
03.12.19	Donald was arrested and bailed to appear on 10.01.20.
10.01.20	Committal mention 3 (Donald only). Fixed for committal hearing (submissions only) on the same day as the committal of Kellway.
21.09.20	Second committal mention. Adjourned to 27.10.20 for a submissions- only committal hearing.
22.04.20	Committal hearing vacated due to Covid-19 restrictions. Re-listed on 30.10.20.
30.10.20	Committal hearing. Counsel for Kellway cross-examined 4 witnesses. Submissions heard. Committed for trial on multiple charges. Pleaded not guilty. Fixed for initial directions hearing.
18.11.20	Plea offer submitted on behalf of Kellway. This was later rejected but facilitated ongoing discussions.

30.11.20	Initial directions hearing. Adjourned to 29.01.21 for discussions.
06.12.20	Plea offer submitted on behalf of Donald. This was later rejected but facilitated ongoing discussions.
29.01.21	Directions hearing 2. Adjourned to 15.04.21.
15.04.21	Directions hearing 3. Adjourned to 10.06.21.
10.06.21	Directions hearing 3. Arraigned and pleaded guilty to negligently causing serious injury. Fixed for plea hearing on 12.11.21.
12.11.21	Plea hearing listed.

[2022] VCC 661

12 May 2022