Director of Public Prosecutions v Kelly
[2020] VCC 1586
•2 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00698
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN KELLY |
---
JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 August 2020 & 18 September 2020 | |
DATE OF SENTENCE: | 2 October 2020 | |
CASE MAY BE CITED AS: | DPP v Kelly | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1586 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: maintaining a sexual relationship with a child under 16 years - physical education teacher – remorse – general deterrence – just punishment - COVID-19 - longstanding depression – significant impact on victim - limb five of Verdins - unprotected sexual penetration
Legislation Cited: Sex Offenders Registration Act 2004 - Sentencing Act 1991
Cases Cited: R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
Sentence: five years’ imprisonment and I fix the period of three years imprisonment as the period you must serve before you will become eligible for parole - s6AAA: but for your plea of guilty I would have sentenced you to eight years’ imprisonment with a non-parole period of six years’ imprisonment - subject to the conditions of the Sex Offenders Registration Act 2004 for life
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Gibson (For plea) Ms E. Margaronis (For sentence) | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr D. Galbally AM QC and Mr P. Stefanovic (For plea) Mr B. Zhou (For sentence) | Madgwicks Lawyers |
HIS HONOUR:
1 Benjamin Kelly, on 18 September 2020, you pleaded guilty to one charge of maintaining a sexual relationship with a child under 16 years. The maximum penalty for this offence is 25 years’ imprisonment.
2 Tendered as Exhibit A, and read aloud in court, was the Summary of Prosecution Opening for Plea. In short, the period of your offending dates from 17 August 2003 until the first day of March 2005, the day before your victim turned 16 years of age. During the period of your offending, you were aged between 24 years and 9 months and 26 years and 4 months. You are presently 41 years of age. Your victim was aged between 14 years and 6 months and 15 years and 11 months during your offending against her. She is now aged 31.
3 In April 2003, you began teaching as a relief teacher at Swan Hill College, before obtaining a permanent position in December 2004. Initially, you taught your victim in your role as a relief teacher on only a couple of occasions in 2003, when she was in Year 9. However, later, you became her physical education teacher and taught her some three periods per week.
4 You first met your victim in May 2003, while she was at a year 9 school camping trip. You attended that excursion to assist another teacher, and there is no suggestion that there was any inappropriate conduct by you towards your victim on this trip.
5 By 16 August 2003, you had obtained your victim’s mobile telephone number and you sent her a text “hey, how you going?”. Your victim replied, “who is this?”. A few days later, you responded “it’s Ben Kelly”. You had managed to source your victim’s phone number from a friend of the victim.
6 Thereafter, for a period of two to three weeks or so, you and your victim exchanged text messages. The messages became flirtatious in nature. As a result of a request by you, your victim forwarded nude photographs and videos of herself to you. You began having phone sex, meaning mutual masturbation over the phone whilst talking to one another.
7 On an evening in September 2003, when your victim was 14½ years of age, you and she arranged for her to sneak out of her home to meet you to have sexual intercourse. This was the first of many occasions of sexual intercourse between you and your victim.
8 Initially, your victim would sneak out of her home and meet you on the road that led away from her parents’ farm property. She would meet you at your car, where you would have sexual intercourse. Thereafter, you travelled to Lake Boga, where you would have intercourse.
9 In October 2003, you left Swan Hill for a few months but remained in contact with your victim. You returned to Swan Hill at the start of the 2004 school year and taught at Swan Hill College. During 2004, you did not teach your victim, but you continued to see her. She would sneak into your home for the purposes of having sex with you. At this time, you were living with your mother and stepfather in Swan Hill.
10 On one occasion in May 2004, you both fell asleep after intercourse and did not wake until morning. Rather than drive your victim home, which was your usual practice, because of the lateness of the hour you dropped her off at the bus stop at the end of the road that led to her parents’ farm. As your victim walked towards her home, she met her mother and stepfather, who were out looking for her, as they were concerned about her absence from the family home.
11 When aged 15, in 2004, your victim secured a casual job working for Kentucky Fried Chicken (KFC) in Swan Hill. Your victim started work at 5.00pm and between the end of school and the start of work, she would come to your home where you would engage in sexual intercourse.
12 In early 2005, just before the victim turned 16, she became your student in physical education classes. During one class, whilst walking around supervising students, you walked past the victim and wrote on the top of a piece of paper “I want to fuck you” and showed it to her.
13 In April 2005, when the victim had turned 16 years, you formed a relationship with a new partner. As a result, you ceased communication with your victim. You moved to Sea Lake with your new partner in 2006 and you began teaching at Tyrell College in Sea Lake.
14 In the winter of 2005, your victim confided in one of her friends about the true nature of her relationship with you. You became aware of your victim’s friend’s knowledge of the true nature of your relationship with your victim and, as a result, you began to send messages to her. One such message from you to the victim’s friend stated that if she told anyone about the relationship, then you would hold her responsible in the event your victim killed herself.
15 To my mind, this was a crude attempt by you to prevent the victim’s friend from revealing to others the nature of your relationship with your victim and so avoiding the consequences of your forbidden relationship.
16 When your victim was 17 years of age, in 2006, and studying in Year 12, you resumed your relationship with her. Your victim began staying at your house in Sea Lake, telling her parents that she was staying with friends. Your relationship continued into 2007, when your victim was studying at Latrobe University Bendigo. You would drive to Bendigo and stay with your victim during the week, and your victim would travel back to Sea Lake to see you on weekends.
17 In 2008, the relationship with your victim ended and you moved to Darwin. From time to time you would visit Swan Hill and you and your victim would catch up.
18 From 2008 until 2018, your victim confided in her male companions about her relationship with you. Ultimately, your victim confided in her then partner who, in turn, communicated her complaint to her brother. Your victim’s brother contacted you by way of Facebook message saying, amongst other things, “14 years old she was”. You replied to that message in the following terms:
“If I could take it back I would. It kills me every day inside. Clinical depression has fucked me. Not that it makes anything better or right. Every day I wish I could take it back. Words can’t describe.”
19 You continued:
“Yes, I’m honestly sorry … So much. Even to the point 2 weeks ago I had a gun to my head. I’m sorry for all the pain and hurt I’ve caused.”
20 On 19 October 2018, your victim participated in a pretext telephone call with you. During the call, you acknowledged that your victim was 14 when you commenced your relationship with her. When challenged by the victim, who said “yeah, but I was 14 then”, you responded “yeah, I know, but I can’t change that now. I wish I could”.
21 You were interviewed under caution on 20 November 2019 and made a “no comment” interview. You were bailed and remained so until you were remanded in custody at the end of the plea hearing.
22 This matter resolved at the committal mention stage and, accordingly, your plea must be regarded as an early one. You are entitled to the benefits that flow to you from this plea, being that it is of utilitarian value and it is some evidence of your remorse.
23 Tendered as Exhibit B, and read aloud in court by your victim, was her Victim Impact Statement. Your conduct has had a long lasting and profound effect upon your victim. Your victim regards herself as damaged. She recalls that, at the beginning, the forbidden relationship that you had with her was exciting and alluring, and that she felt special and different to other schoolgirls. However, during your relationship with her, she withdrew from her parents, was untruthful with them, and they lost faith in her, which resulted in her experiencing feelings of self-loathing and low self-esteem. She felt lonely and isolated in her own home, which was a loving one.
24 Your victim has battled with body image issues and with anxiety and depression. She has self-harmed, and the scars cause her shame and embarrassment. She has often suffered from suicidal ideation. In order to deal with the consequences of your forbidden relationship with her, she has consulted counsellors and psychologists. To this day, she has difficulty sleeping, and this impacts upon her work.
25 Mr Galbally, of Her Majesty’s Counsel, who appeared with Mr Stefanovic, tendered as part of the plea material the defence outline of submissions for plea hearing together with a number of extracts from the Judicial College of Victoria, Victorian Sentencing Manual, in respect to persistent sexual abuse offences (Exhibit 1).
26 Exhibit 2 was a bundle of 10 references from friends and work colleagues, three of whom were called to give evidence on the plea, being Reg Ferguson, Rebecca Hewitt and Bronwyn Wright.
27 Mr Ferguson swore that he has known you for well over 10 years. Mr Ferguson would meet with you perhaps two to three times per year and your relationship with him is based on your charitable work for orphanages in Indonesia. Mr Ferguson described you as being passionate about Bali and that you were active in Indonesia and, particularly, Bali, seeking donations for the provision of food, teaching aides, and play equipment for children in orphanages in the Indonesian archipelago.
28 In his reference, Mr Ferguson wrote that you had explained your situation to him, and that you had demonstrated great remorse to Mr Ferguson and his wife and explained that you would be pleading guilty at the earliest opportunity.
29 Ms Hewitt has been a lifelong friend of yours. You met at high school and dated for a period of four years while still at school. Your friendship remains to this day. Ms Hewitt described you as very brave and a person of integrity. Ms Hewitt swore that from about 2008, from time to time, you would “reach out” to her when you were facing challenges from disappointment, anxiety and depression. Ms Hewitt indicated that this contact was sporadic over the years since 2008.
30 Ms Wright swore that she had known you for a period of approximately 10 years. She first met you in 2011 when you were employed by an Aboriginal corporation. She observed your work with young Aboriginal people and your commitment to them, which led to you being employed as a teacher at the La Grange Remote Community School from 2013 until 2019. Ms Wright was your principal. Ms Wright valued highly your dedication to your pupils, particularly working with vulnerable children, and their families.
31 In her reference, Ms Wright wrote as to your involvement in the local football club as a committee member and as the wellbeing coordinator for the school social club. You were also a committee member of the Positive Behaviour Support Committee at the school.
32 According to Ms Wright’s evidence and her reference, she first became aware of any troubles that you may have had by way of a psychological nature in 2019, after you had been charged by police. She was aware that you had sought the assistance of a psychologist and that you were permitted time off to deal with your reaction to being charged.
33 Each of your referees are aware of the offence with which you are charged. Each of your referees are aware of your commitment to charitable works in Indonesia and, in particular, that you have made financial donations which have allowed, in respect to one foundation, payment for children’s schooling and uniforms, and a refrigerator to ensure that the children connected to the Rumah Buah Hati Foundation always have fresh food. On one occasion, you paid for a surgical procedure required by a child connected to the foundation, and you visit the foundation annually to see how the children are progressing.
34 Ms Raissa Moore, one of your referees and the cofounder of the Rumah Buah Hati foundation, wrote that you have expressed deep and sincere remorse for your actions towards your victim, and the pain that you have caused her.
35 Your other referees speak in like terms, that you are a sincere and caring individual who is conscientious, considerate and committed to the small community in which you have lived for years and you are regarded generally as a selfless person.
36 Tendered as Exhibit 3 was the report of Dr Adrienne Brown, clinical psychologist, dated 6 May 2020. While tendered as Exhibit 4 was the report of Patrick Newton, psychologist, dated 30 July 2020, who also gave evidence on your plea.
37 You consulted Ms Brown in January this year and attended on her for eight sessions between January and April. On consultation with Ms Brown, you explained to her that you were suffering from depression, gambling addiction and dependence on alcohol, that you needed to make some changes in your life, and had decided it was time to seek professional help.
38 Both Ms Brown and Mr Newton described you as suffering from “double depression”. Mr Newton, in his evidence, explained this expression generally by saying that you had an underlying predisposition to depression and that from time to time you had experienced episodes of major depressive disorder, which was exacerbated by your underlying predisposition to depression.
39 Mr Newton opined that you had suffered from depression from at least 2008, basing this opinion upon medical records available to him. However, it is to be noted that Mr Ferguson regarded you as a passionate person and never thought that you had depression. Your contact with Ms Hewitt in respect to your psychological state was sporadic, and Ms Wright was only aware of your troubles and the fact that you had sought psychological assistance after you had been charged in 2019. However, there is, contained in the balance of the testimonials that make up Exhibit 2 references to you being depressed from time to time whilst working in the Northern Territory.
40 You were born and raised in Swan Hill and are the youngest of three sons born to your parents. You described your father to Mr Newton as being a heavy drinker and gambler, and that the relationship between your father and mother was a conflicted and tense one which came to an end when they separated when you were about seven years of age. You remained in your mother’s care after your parents’ separation, but your father regularly exercised access to you. You attended local schools in Swan Hill and, after completing your VCE, attended the University of Ballarat between 1998 and 2003, obtaining a Bachelor of Education in Physical Education.
41
You told Mr Newton that you had always wanted to be a teacher, and that although you could not recall any specific content in your university course concerning teacher/student relationships, you well-understood the forbidden nature of the relationship that you formed with your victim. You told
Mr Newton that you had a strong attraction to the complainant and justified your conduct towards her because you were “in love with her”. You discounted the impropriety of your relationship with your victim because of the strength of the bond that you thought you shared with your victim.
42 Mr Newton opined that you experienced longstanding depressive symptoms and, upon your instructions to him, they have existed since your early twenties. Your earliest documented depressive episode occurred in 2008, although there was no detail provided to me as to the cause of this episode. Mr Newton, in his evidence, swore that the documents available to him did not provide any information in this respect.
43 Mr Newton opined that you have had recurrent bouts of intrusive suicidal ideation but, in respect to the period of your offending, he opined:
“Nevertheless, the fact that he was able to keep working and participating in recreational and social activities suggests that the level of any depression he may have been suffering is likely to have been relatively mild. Certainly, it would not have impaired his ability to understand the wrongfulness of his conduct or its potential consequences.”
44 Mr Newton was of the view that your heavy use of alcohol while working in the Northern Territory was probably an attempt at self-medication. Mr Newton held the view, having consulted with you on three occasions, that your expressions of remorse were genuine. I accept that you are remorseful.
45
Mr Newton assessed your risk of recidivism to sexual offences using
Static-99R and RSVP (Risk for Sexual Violence Protocol) as low.
46 Mr Galbally relied on:
·your lack of prior convictions;
·your charitable works;
·your earlier plea of guilty and what flowed from it;
·your genuine expressions of remorse;
·your good prospects for rehabilitation;
·your history of depression;
·your low risk of recidivism; and
·the contents of the references (Exhibit 2) to ultimately submit that a Community Correction Order was within the range of sentences available for your offending.
47 Mr Galbally made this submission despite conceding in his written submissions, which he adopted on more than one occasion during the course of the plea, that your offending would lead to a sentence of imprisonment that involved a head sentence and the fixing of a non-parole period (see Exhibit 1 paragraphs 34, 121 and 146).
48
In respect to the issue of the impact of you having experienced depression from time to time in your life, Mr Galbally submitted that limbs five and six of
R v Verdins; R v Buckley; R v Vo(2007) 16 VR 269 applied to the exercise of my sentencing discretion. I accept, as was conceded by Mr Gibson of Her Majesty’s Counsel and Senior Crown Prosecutor, that limb five of Verdins applies to you, in that the sentence that will be imposed on you will weigh more heavily on you than it would on a person in normal health.
49
In respect to the application of limb six of Verdins, Mr Newton, under
cross-examination, conceded that there was but a potential for imprisonment to have a significant adverse effect upon your mental health. He did not opine that there was a serious risk of imprisonment having a significant adverse effect on your mental health either in his sworn evidence or in his report. Accordingly, I find that limb six of Verdins does not apply to you.
50
Mr Galbally, in his written submissions, accepted that harm is inherent in sexual offences against minors. He acknowledged that the principle of just punishment had application in your case and that general deterrence is the prime sentencing consideration when arriving at an appropriate disposition in your circumstances. Further, he acknowledged that your conduct must be denounced. Further, Mr Galbally acknowledged that there was an aspect of your conduct towards your victim that could be characterised as grooming. Further, that your conduct constituted a breach of trust, because you were a teacher and your victim was a pupil at the school at which you taught, as well as from time to time being a student that you personally taught. Further,
Mr Galbally acknowledged that there was a power imbalance between you and your victim arising out of the difference in your respective ages over and above that of the teacher/student relationship.
51 Contained in Exhibit 1 was a reference to your father’s ill health. Your plea was adjourned on 17 August 2020 so that enquiries could be made as to the exact state of your father’s health. In the written materials tendered on your behalf your father’s state of health was described alternately as one of recovering from surgery for cancer or as having been hospitalised in recent weeks and currently undergoing tests for cancer, although there was no diagnosis or prognosis in respect to your father. Mr Galbally, in his written submissions, acknowledged that at present it cannot be said that “exceptional circumstances” exist in respect to hardship to a third party, being your father, resulting from you receiving a term of imprisonment. No oral argument was put to me on this topic during the plea.
52 You will be sentenced to a term of imprisonment, and I must take account of the anxieties that you will experience and the strict regime under which you will be imprisoned as a result of the COVID-19 pandemic.
53 I regard your criminal conduct as a serious example of offending of its kind. Your offending occurred over a period of 18 months. During that period there were multiple occasions of sexual misconduct. Your offending was not isolated nor spontaneous, it was pre-planned and persistent. At the outset, there was an element of grooming in your offending. You took steps to avoid detection, which is indicative of your awareness of the wrongfulness of your conduct. There was an age disparity between you and your victim of 10 years and, accordingly, a significant imbalance of power between the two of you. You breached the trust that exists between a teacher and a student. Whilst you never ejaculated into the complainant’s vagina without having used a condom, you did engage in unprotected sexual penetration and, accordingly, put your victim at the risk of sexually transmitted disease.
54 Mr Gibson submitted that s5AA of the Sentencing Act 1991 had application in your case to preclude me from having regard to your lack of prior convictions and good character. To my mind neither of these two characteristics assisted in any way in the commission of the offences. It was the fact that you were a young teacher that created the opportunity for you to offend and the fact that you were without prior conviction at the time of your offending to my mind was coincidental.
55 Mr Kelly, you are 41 years of age and were aged between 24 and 26 years of age at the time of your offending. Accordingly, there has been some 15 years delay in bringing this matter to court. During that time, you have committed no criminal offences and have performed your role as a teacher in a remote Aboriginal community admirably. You have contributed to the remote community in which you lived by your involvement in the local football club and the like. In addition, you have been active in charitable works in Indonesia by raising funds to provide educational materials, uniforms, food and play equipment to children in orphanages, especially those children connected to the foundation run by Ms Moore. Accordingly, you have good prospects for rehabilitation, and I accept the opinion of Mr Newton that you are a low risk of sexual recidivism. However, your conduct must be publicly denounced, and you must be justly punished.
56 Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you to five years’ imprisonment and I fix the period of three years imprisonment as the period you must serve before you will become eligible for parole.
57 I declare that you have spent 14 days by way of pre-sentence detention not including today.
58 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to eight years’ imprisonment with a non-parole period of six years’ imprisonment.
59 I direct that you be subject to the conditions of the Sex Offenders Registration Act 2004 for life.
60 Now, Mr Kelly, beside you is a document which relates to the application of the Sex Offenders Registration Act 2004 to you. That document is a document that simply notifies you of that fact and you are obliged to sign it simply to acknowledge that you have received the document. Would you be so kind as to sign that document for me?
61 OFFENDER: Yes, Your Honour.
62 HIS HONOUR: All right. Thank you very much. Now, what will happen is that I take it there is no prison officer in the room with you?
63 OFFENDER: No, Your Honour.
64 HIS HONOUR: All right. When the prison officer comes to you that document is to be provided to that person to be forwarded by email to my associate. You should retain the original in your personal property as a record of that transaction. Do you follow?
65 OFFENDER: Yes, Your Honour.
66 HIS HONOUR: Thank you very much, Mr Kelly. Counsel, is there anything that arises out of my sentence? Mr Zhou?
67 MR ZHOU: No, Your Honour, not that I seek, no.
68 HIS HONOUR: And solicitor on behalf of the - I beg your pardon. Yes, solicitor on behalf of the Crown?
69 MS MARGARONIS: Your Honour, there are two matters I wanted to raise. The first matter is in relation to the facts which made up paragraph 34 of the Crown's opening. I think Your Honour said in 2017. It is actually 2007 when the victim was 18 and studying at Latrobe University.
70 HIS HONOUR: I beg your pardon. At prosecute?
71 MS MARGARONIS: Thirty-four. Your Honour mentioned - - -
72 HIS HONOUR: You are not coming through too clearly. Could you repeat the paragraph number?
73 MS MARGARONIS: Thirty-four, Your Honour.
74 HIS HONOUR: There is no paragraph 74. Thirty-four?
75 MS MARGARONIS: Thirty-four.
76 HIS HONOUR: Sorry, it is - - -
77 MS MARGARONIS: Yes.
78 HIS HONOUR: I beg your pardon. It is just not such a clear thing.
79 MS MARGARONIS: Apologies, Your Honour.
80 HIS HONOUR: No, no, no, it has got nothing to do with you. It has everything to do with the technology we are obliged to wrestle with. Just pardon me for a moment. Yes, you are quite right. Thank you very much for that.
81 MS MARGARONIS: And the other factor I wanted to mention. I just missed the s.6AAA declaration. Could you please repeat that for me?
82 HIS HONOUR: Yes, certainly. The declaration is that but for your plea of guilty I would have sentenced you to eight years' imprisonment with a non-parole period of six years' imprisonment.
83 MS MARGARONIS: Thank you, Your Honour.
84 HIS HONOUR: Thank you very much indeed for those matters, and I will amend my sentence accordingly. I want to thank you for your assistance.
- - -
0
1
0