Director of Public Prosecutions v Kelly

[2021] VCC 1017

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW KELLY(A PSUEDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 May 2021
CASE MAY BE CITED AS:	DPP v Kelly
MEDIUM NEUTRAL CITATION:	[2021] VCC 1017

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Ellis	Office of Public Prosecutions
For the Accused	Mr R. Bhattacharya	Michael J Gleeson & Associates

HIS HONOUR:

1Matthew Kelly[1], you have pleaded guilty to one charge of attempted aggravated burglary, one charge of negligently dealing with the proceeds of crime and three charges of possession of a drug of dependence.  Charge 3, of cannabis, carries a monetary penalty only.  Charges 4 and 5 carry one year maximums.  Attempted burglary carries 20.  Negligently dealing with the proceeds of crime, if I remember correctly, carries five.

[1] A pseudonym.

2You have also pleaded guilty to a number of uplifted summary matters.  I do not need to go into the penalties for all those.  Each of those carries, potentially, a sentence of imprisonment, and it is my intention to give an aggregate sentence on those summary matters and make some of it cumulative upon the sentence I impose upon the attempted aggravated burglary charge.

3You pleaded guilty after a committal but I can understand fully why the matter was contested.  I regard that plea as having come to a - being made to a settled indictment and at a reasonably early stage.

4I accept, on the material before me - including the letter of apology that you have written - that you now have appropriate remorse for that offending and indeed a level of insight into it.  You obviously must get the utilitarian benefit of that plea of guilty, which, in COVID times, is very significant, and in this situation meant that one of the victims of your unlawful assault at least did not have to give evidence in a trial.

5When you were arrested by police you made fulsome admissions, which is infrequently the case in such circumstances as this, and you must get the benefit of that.  It is in fact indeed those admissions which, in one sense, give rise to the plea of guilty.

6You do have a significant criminal history.  You have been in gaol before.  You have been convicted of violent offending, dishonesty and charges involving driving.  It is not an enviable criminal history but you are still only 26 years of age and you are still, in my view, not irredeemable.  You clearly are at the point in your life where you can still turn your life around and make some sense of it.

7A summary of the offending, and the level of offending, has been debated with some robustness during the course of the plea.  It was along the following lines.

8One of the complainants in this matter, Anita Maguire[2], had been in a relationship with you for approximately a year.

[2] A pseudonym.

9On 9 August of 2020 she sent you a text message to come collect your clothes.  It is clear that you had been residing on and off at the premises for a significant period of time and it was somewhat debatable as to whether the Crown would be able to prove that you were a trespasser insofar as those premises were concerned.  In any event, at approximately 11 o'clock you texted her asking her where she was.

10On 10 August 2020, at approximately 12.50 am, she received four phone calls from you, which she did not answer.

11At approximately 1.55 am she received a further phone call and heard a car horn out the front of her property.  She answered the phone and you said, 'I'm out the front.  Who's inside, what's his name, and whose car is parked on the front lawn?'  At that time the complainant's mother, a Ms Denise Reynolds[3], and a friend, a Mr Hicks[4], were inside.  She ended the phone call, collected your clothing, walked outside the front of the premises and she stood in front of the screen door.  By that time you had already exited your vehicle.  I will not go through each of the individual summary matters. I do not think there is any point.

[3] A pseudonym.

[4] A pseudonym.

12In any event, you approached a sedan parked on the front lawn, which I am assuming was Mr Hicks's, and you punched the driver's side window with a fist and you then confronted Ms Maguire, saying, 'Who is it?  Don't fucking lie to me', and called her a slut.  These are simply matters that go to the circumstances surrounding the offending and they are not matters for which you are to be sentenced, obviously.

13In any event, the mother remained inside the premises, observing what was happening.  She said that you said, 'I'll kill the cunt, Anita.  He's in there?  I'll kill him, I'll kill him, I'll kill him'.  That goes towards your intent to assault once you in fact did become a trespasser at a later - or tried to become a trespasser at a later time.

14You returned to the vehicle and kicked the side door - that is the vehicle of
Mr Hicks.  You re-approached the complainant - she was still standing at the screen door - and she told you to take your clothes.  You pushed her shoulders and grabbed her forearm, pulling her towards you, and that gives rise to the summary offence of unlawful assault.  The maximum penalty for that of course is three months.

15You opened the screen door and entered the property.  As you were going inside you said, 'Once I get in, you're dead'.  You then approached the complainant's bedroom door, which was locked.  Mr Hicks, I am assuming - everyone seems to assume this was inside.  You banged on the door, stating, 'Open the door you weak cunt'.  Using force via the hip and shoulder, attempted to open it.  While this was occurring the mother and Ms Maguire asked you to leave.  Being unable to gain entry to the bedroom you did leave the premises and, at that point in time - or during that point in time the mother rang the police.

16You later on told police that you had received a Snapchat photograph from her about an hour before your arrival at the scene which showed her in a bed with another man.  I take the view that that is probably correct, and that is why you went around there, but I have got to be very careful here in a situation where I do not sentence you for aggravated burglary of the house.  You are not to be regarded as a trespasser going into the house and a situation where it is simply the attempted aggravated burglary of a locked bedroom, and insofar as that is concerned the person who is within that room has not made a statement, nor a victim impact statement.

17I regard it, even though it be an attempted confrontational burglary, and I accept what the Crown say in regard to that.  In my view it is at the lower end of, one, aggravated burglary, and two, certainly of attempted.

18There was no weapon used.  There was no object used once you were inside the premises to endeavour to gain access to that bedroom.  It is a situation where there would have been an assault through fear, one would presume, but using only your body and being unable to get into that room you, upon being asked, left the premises.  You cannot do it and you have got to go to gaol for it, and your counsel does not demur from that position.  Indeed it is sufficiently serious that, in my view, anything other than a head sentence and a minimum term would be inappropriate.  Accordingly, I do intend to impose such a sentence.

19The offending itself has to be regarded as serious.  Of course, the application of general and specific deterrence as well as denunciation and appropriate punishment.

20Insofar as the other charges are concerned they effectively revolve around a search at a motel at which you were staying.  There was a brown wallet containing cards which were not yours - that is negligently deal with the proceeds of crime.  There was a small, as I understand it, container with cannabis in it.  There was an Eclipse mints container containing a small amount of amphetamine and there were three containers which are simply remnants of Butanediol and that gives rise to Charge 5; possess drug of dependence.

21You were found to have an extendable baton.  There was also a couple of other weapons - a machete, as I recall - so you were certainly living a lifestyle which was not conducive to not offending on whatever basis one takes of all this.  I accept that at the time you were drinking heavily and using drugs.  That certainly does not excuse the offending but places it into an overall context of why you may have been behaving irrationally.

22Written submissions on your behalf said that because of various matters principles of Verdins arise here.  The Crown put that it is in fact in the setting of domestic violence.  As I have indicated during the course of the plea, in my view it is a situation of an ex-partner, and you were clearly that.  Whether you were a trespasser in the house is a different matter.

23Upon forming the view, either by reason of her sending you a photograph, which would have been a silly thing to do - alternatively, driving past and seeing the car on the lawn - you made a very quick decision to go in and, it would appear, to assault in some way - whether it just be to frighten is another matter, because you had no weapon with you - the person whom you believed that your former partner was having sex with is a matter of male possessiveness and jealousy, in my view, rather than what could be described as endeavouring to dominate the former female partner and the intention was, in my view, to assault - whether by physical or by fear - the person that you believe was in fact having sex with her.  Again, that might be splitting hairs to be making those sorts of distinctions.  As I have said already, you cannot do it.  The community is sick of it and you have got to go to gaol for it.

24I then look to matters personal to you, but before I do that I refer to the victim impact statement of Ms Maguire.  It has to be borne in mind that the aggravated burglary was of a bedroom which she was not in, though she had to view all of this and a situation where you did apply some force to her at the front door area.  She describes quite significant consequences of all that.  Whether they are as a result of this particular incident or an overall scenario I do not know, but I certainly take into account that that is what she says has been the consequences for her and the situation.  That is why burglaries; aggravated burglaries and assaults and domestic assaults was the first one clearly that was treated by the courts with seriousness.  They saw the consequences; whether it be as a result of one incident, or a number, are a blight on the community and there has to be the application of general and specific deterrence in relation to them.  That being said, of course there must also be - and I believe I have already indicated; if I have not, I will do now - denunciation.

25Accordingly, in terms of assessing that sentence, I then take into account matters relevant to you.  Your counsel provided a very helpful outline of submissions.  There was also, tendered on your behalf, a report from
Mr Mackinnon; a psychologist who is well-known to me.  There is also a report from a lady saying she is your partner and there is also a reference from your mother.  A letter of apology has been read out to me by your counsel.  I am assuming for the moment that you actually wrote it but, be that as it may, it does express the appropriate remorse.  It does express a desire to improve and it does express an acceptance of the criminality and the wrongness, in a way, of your behaviour.  If that is genuine it should give you sufficient insight in avoiding situations such as this in the future and it gives me some confidence in your prospects for rehabilitation and, as I have already indicated, Mr Hicks - who is the attempted victim, if you like, of the attempted aggravated burglary - has not made a statement or provided any sort of materials.  The offending was, I think, relatively spontaneous, and I have already gone through the other matters.

26In your record of interview you told the police that you took responsibility for your actions, saying it is all your fault at the end of the day.  If you could control your anger it would not have happened.  And to the psychologist,
Mr Mackinnon, you said 'I regret it all.  Anita's mum and Anita didn't deserve my abuse'.  And of course I have referred to your letter of apology.

27In simple terms, you grew up in difficult circumstances.  Your father struggled with drug addiction and was often in custody.  Your home was not a happy place and you often felt neglected.  I accept that you were diagnosed with ADHD as a child and I am not going to go through - I do not think Verdins is applicable here for any of the reasons, or in the written submissions, and I have discussed that with your counsel and I will not take it any further - and there was also subsequent offending when you were young, leading you to spending time in juvenile detention.

28You ultimately completed high school, attending Parkville College.  Did a
pre-apprenticeship in electroplating technology at Melbourne Polytechnic and you have otherwise worked as a labourer.  You do have a daughter, who is now eight years of age, from a previous relationship, and being able to contact her is very important to you.

29I note at this point in time that you have spent a - certainly a portion of the 232 days on remand in COVID circumstances.  I am well aware that doing it in those circumstances resulted in - effectively, for almost all prisoners - no contact visits, making it very difficult to do courses, even though I note that you have done a couple - or been able to do a couple whilst on remand and it has been a difficult time indeed for prisoners.

30The opinion of Mr Mackinnon is that he diagnosed you with mixed anxiety and depression disorder and he said that that mental illness 'made a significant contribution to his offending by degrading his ability to reason and make sound judgment, degrading his sense of personal and community responsibility and making him more impulsive and prone to unrestrained, reckless, and angry behaviour'.

31I think what caused this was that you were jealous of a man that you thought was having sex with your former partner.  It is as simple as that.  So I am rejecting that proposition of - I think it is just stretching Verdins way too far.  In any event, the time in custody you have had - as I have already indicated, the COVID situation of quarantine in isolation, and you have had a couple of those when you had to go to hospital for a medical procedure and I do not need to go through all of that.

32I have been through your criminal history in the sense that you have been to gaol before and it has been for violence and it has been for dishonesty.  I note with a little hope that your last violence offence was in 2014, when you would have been in your late teens.  It appears clear from the materials that you no longer harbour any resentment against your former partner, or Mr Hicks, and I will accept that the risk of your offending against either of them in the future would be low indeed.

33The risk of you reoffending in a general way; one would have to be very guarded about your prospects of rehabilitation in that respect.  However, as your counsel has pointed out, it is the longest period of time you have been on remand and you have been - I am assuming that is the longest you have been without drugs for a period of time.  Most importantly, you have been able to start speaking to your daughter again and you really want to have communication with her.  Trying to communicate with her and continuing to be drug free is a very significant motivation for you when you are ultimately released from prison.

34I understand that the mother of that child, very sensibly, does not want you to have anything to do, effectively, with the child whilst you are still using drugs, and I think that is very sensible on her part and it should give you a very, very strong motivation to not reoffend in this way.

35You have been attending sessions of Narcotics Anonymous whilst in prison and, again, that shows that you are taking this all seriously.  Quite often prisoners in your situation just sit down - sit in their cell and drop their bundle, but you have not done that.  You are at the age of 26 - which is still relatively young, in a sense - endeavouring to turn your life around, and I accept that your motivation at least in the words that you say is, at this time, genuine.  Whether that can carry on into the world outside gaol is a matter for you.  You are the only person that can rehabilitate you and you are the only person that cannot reoffend.  I understand that you now believe, or - sorry.  I read or hear that you now understand that there are many options available to you to endeavour to resist that use of drugs and endeavour to resist the prospect of reoffending.  As I said, rehabilitation is up to you, though I think insofar as so is the risk of reoffending.  Insofar as these victims are concerned I think the risk is probably low.

36I do not think there is anything else I really need to go into in this matter.  It is a situation where, as I say, you have used your time in gaol wisely.  You were accepting that that is what had to happen, but I have to impose a sentence which accurately reflects the community's condemnation of this sort of offending and it is really going to be a matter between you and the Parole Board as to what occurs in the future.

37I have, as I have indicated, read the materials from your mother and your partner.  I accept that upon release you are capable of working, that you will have stable accommodation, and all those things operate in favour of your reclamation.  It is obviously much more of the community's benefit, as well as your own, if, upon your admission back into the community, you do not use and you do not offend, and I think a parole period is really the only way left open because of the seriousness of the offending, but I do not think the head sentence has to be a very significant one and I do not think the non-parole period has to be a very significant one either.  They still must reflect the seriousness of what has occurred.

38Accordingly, taking into account all those matters, on Charge 1, attempted aggravated burglary; 24 months.

39Charge 2; 90 days concurrent.

40Charge 3; convict and discharge.

41Charge 4; 30 days concurrent.

42Charge 5; 30 days concurrent.  That is done for reasons of totality.

43That gives an effective head sentence on the indictment of two years.

44Insofar as the summary matters are concerned I will give you an aggregate period of imprisonment of six months.  I will direct that two months of that six months be served cumulatively upon the total effective sentence on the indictment, which gives a total overall effective sentence of 26 months.

45In these particular circumstances, bearing in mind your now sobriety and intentions of rehabilitation, I direct that you serve a minimum term of 15 months before becoming eligible for parole.

46I direct that 232 days be reckoned as having been served under this sentence.  I say that just so you understand the benefit of having pleaded guilty.  Having pleaded not guilty may have been a different result, because the charges would have been different, but just so you understand the benefit that you have received, but for your plea of guilty I would have sentenced you to be imprisoned for a period of three years with a minimum term of two years.  There are no other orders I have to make?

47MS ELLIS:  No.  There's just the disposal order.

48HIS HONOUR:  I've made the disposal order.

49MS ELLIS:  Thank you, Your Honour.

50HIS HONOUR:  Yes, that's been done.  All right, I thank counsel for that.  Do you need a moment to talk to your client?  I'm happy to clear the court and let you talk to him if you wanted to?

51MR BHATTACHARYA:  Yes.  Perhaps briefly, Your Honour.

52HIS HONOUR:  Yes, all right.

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