Director of Public Prosecutions v Kelly

[2019] VCC 2226

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00296

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARREN KELLY

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2019, 11 December 2019
DATE OF SENTENCE:	19 December 2019
CASE MAY BE CITED AS:	DPP v Kelly
MEDIUM NEUTRAL CITATION:	[2019] VCC 2226

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Cecil	Office of Public Prosecutions
For the Accused	Mr J. Lavery	Chester Metcalfe & Co

HIS HONOUR:

1Darren Kelly, you have pleaded guilty to two charges of common law assault, one charge of aggravated burglary person present, two charges of intentionally damage property and related summary charges, Summary Charge 9, enter premises without authority, Summary Charge 10, drive in a manner dangerous, Summary Charge 12, presence of illicit drug in blood sample taken within three hours of driving and Summary Charge 13, assault emergency worker on duty.

2These offences carry the following maximum penalties; common law assault, five years' imprisonment; aggravated burglary person present, 25 years' imprisonment; intentionally damage property, 10 years' imprisonment; enter premises without authority, six months' imprisonment or 25 penalty units; drive in a manner dangerous, two years' imprisonment or 240 penalty units; presence of illicit drug in blood sample taken within three hours of driving, fine of no more than 12 penalty units; assault emergency worker on duty, six months' imprisonment or 60 penalty units.

3It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, summary of prosecution opening.  That opening was accepted by you through your counsel.

4I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now briefly summarise.

5These offences arose out of six incidents; the first five incidents occurring on 15 March 2018.  The first incident involved you striking the victim, your former partner, Kristy Beach, with an open palm to the left ear causing redness and pain to that ear (Charge 1, common law assault, rolled-up charge).

6This occurred immediately after the victim had pointed out that you were drunk.  You also screamed at the victim, you threatened to break a window of the house and cut your son's throat with it and after you left the house you sent a number of text messages, one of which stated,

'I will be pleasant but I can't speak for the Finks.'

7You took the victim's motor vehicle and drove to Channel Close, Blind Bright, the home of the Dolecek.  This was the location of the second incident.

8After entering that house you had an altercation with Otto Dolecek and you punched him two times to the nose with a clenched fist causing his nose to bleed.  Otto Dolecek fell backwards and received abrasions to his forearm and back (Charge 2, aggravated burglary, and Charge 3, common law assault).

9You then drove to Warneet Road, Blind Bright, the home of John O'Conner-Byrne.  Here you committed the offences of criminal damage and trespass.  You used a heavy metal ornament to cause about $1,000 worth of damage to a security door weatherboards and the front windows of the house.  This was the third incident.

10The fourth incident was at Warneet Road, Blind Bright.  You drove to this address and used a baseball bat to smash windows and a mirror of a white Holden Rodeo belonging to Jay Adams (Charge 5, criminal damage).

11The fifth incident was your dangerous driving from Warneet Road for about 40 minutes.  You eventually failed to negotiate a bend due to driving in an excessive speed and your motor vehicle veered across white double lines onto the wrong side of the road before striking a tree.  A police reconstruction estimated you had been travelling at about 90 kilometres per hour in a 50 kilometre per hour zone.

12You were taken to hospital and a blood sample taken at the hospital showed you had a blood alcohol content of 0.103 grams of alcohol per 100 millilitres of blood in your system.  You also had Delta-9-tetrahydrocannabinol in your system (Charge 10, dangerous driving and Summary Charge 12, presence of illicit drug in blood sample).

13Finally, the sixth incident was the next day.  Whilst in hospital you behaved very badly.  You verbally abused police officers and attempted to strike a police officer to the face (Summary Charge 13, assault an emergency worker on duty).  You were forcibly restrained.

14After you were discharged into police custody on 16 March 2018 you were deemed unfit to be interviewed.  You have been in custody since 15 March 2018.

15I state to you that I have taken into account the following matters in mitigation of sentence.  You have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do so.  The community has by your plea been spared the time and cost of a trial, witnesses have been spared the ordeal of giving evidence upon your trial.  You indicated a preparedness to plead guilty when this matter resolved on 14 February 2019.  I accept on all of the material before me that you are genuinely remorseful.

16I have been told something of your personal circumstances.  You are 39 years of age having been born on 24 March 1980.  You were educated to Year 8 level.  You have spent many years working operating excavators and you owned your own excavation business before you were incarcerated.

17In recent years you have undertaken studies in structural engineering and upon your release from custody you plan to live with your father in Berwick and continue with this further education.  You also hope to receive appropriate treatment for a serious knee injury sustained in a motorcycle accident in 2017.

18You have three children from your first marriage which ended in 2011 following assaults which were the subject of charges and resulted in a four-month suspended sentence of imprisonment imposed on 9 May 2012.  You breached the suspended sentence by further offending and were ordered to serve a six-month sentence of imprisonment on 5 February 2014.  You breached an intervention order and were convicted and fined $1,500 on 10 March 2015.

19In 2017 you were involved in a motorcycle accident and, as I have stated, you sustained a serious knee injury in that accident.

20This offending occurred in the context of a bitter past dispute and great domestic disharmony.  Whilst in custody you were viciously assaulted by another prisoner and sustained further severe injuries to the head and knee.

21A number of medical reports were tendered on your behalf.  As a result of concern regarding your fitness to plead I ordered a psychiatric report.  The pre-sentence report was prepared by Dr Carolyn Simms, consultant psychiatrist for the Victorian Institute of Forensic Mental Health dated 5 December 2019.  This report was particularly helpful.

22Dr Simms stated and I quote at 37,

'Mr Kelly understood the consequences of his proposed plea and was aware that he may end up with further time in prison.  He told me that he just wanted to move forward and he had a lot of family support.  Mr Kelly said he just wanted to comply with the process of the court.'

23At 38,

'Mr Kelly was a 39 year old father of four.  He was remanded on charges of assault, intentionally damaging property and aggravated burglary person present and has been in custody since March 2018.  Mr Kelly had a past forensic history including drink-driving related offences and assault.  He had served a previous term of imprisonment.'

24At 39,

'Since 2017, Mr Kelly had been involved in three serious incidents; a motorcycle accident in 2017, a motor vehicle accident at the time of the alleged offences and was assaulted by a co-prisoner on 28 May 2018.  This had left Mr Kelly with a number of physical injuries which limited his mobility and required analgesia.  In addition, following his first motorcycle accident, he developed depression and later post-traumatic symptoms following the car accident in 2018.'

25At 40,

'Mr Kelly had responded to treatment with antidepressants.  He had suffered head trauma, however, was able to attend and concentrate during the interview.  On assessment, he did not display evidence of mood symptoms, however, from his report there had been more prominent anger and irritability a few months ago when he wrote the letters to the police and the County Court.  He had been reviewed by a psychiatrist following this and had responded well to an increase in his antidepressant medication.  There was no evidence of a psychotic illness.'

26At 41,

'In relation to fitness, Mr Kelly described an awareness of the types of pleas and the consequences of these.  He seemed engaged with his legal team.  I believe he could follow the course of a trial and understand the nature of a trial and the substantial effect of any evidence.  In my opinion, he was fit to enter a plea and be tried.'

27I accept Dr Carolyn Simms's opinions regarding your mental state.

28It is not submitted on your behalf that any of the well-known principles enunciated in Verdins' case apply, I have, however, taken into account the physical and mental injuries that you have sustained as part of your general personal circumstances.

29You have been confined to a wheelchair whilst in custody.  I accept that your time in custody is more burdensome because of your various physical injuries described in detail in the numerous reports tendered on your behalf.  You have undertaken programs in gaol and have used your time in custody in a constructive manner.  I assess your prospects of rehabilitation as being reasonable.

30Against these matters in mitigation, however, your actions were very serious indeed.  The most serious offence is the aggravated burglary.  The criminal damage charges involved use of weapons, a baseball bat and a metal ornament.  You have caused substantial fear, distress and trauma to the victims.  Your driving over a period of about 40 minutes was certainly dangerous.

31There are two victim impact statements.  Otto Dolecek is a 75 year old pensioner suffering from chronic depression and anxiety.  He describes feelings of vulnerability, anger and concern for the safety of both himself and his wife.  It was particularly troubling for him that the assault occurred at his home.  He has had to increase his medication and he has had difficulty in pursuing his hobbies.

32His wife, Johanna Dolocech, describes her role as a carer for her husband.  She noted that the assault greatly exacerbated her husband's mental condition requiring an increase in medication.  She had not suffered from anxiety but she has seen a psychologist who diagnosed her as suffering from post-traumatic stress disorder.  She feels unsafe in her own home even though she and her husband have security measures in place.  She feels uncomfortable in the presence of strangers and lives in a state of fearfulness.  Her sleeplessness has increased and she jumps at any unexpected noise.

33You have admitted before me numerous prior convictions.  There are approximately five court appearances between 10 March 2015 and 27 May 1998 involving convictions for offences of violence, breach of court orders, criminal damage and some other unrelated matters in 1998.  The nature of some of these prior convictions for offences of violence, criminal damage and breach of court orders is highly relevant to my task of sentencing you today.

34I have had regard to the principle of totality.  The pre-sentence detention is agreed at 643 days.  There are numerous offences.  They were committed in the six incidents I have described.  The offending on 15 March 2018 was committed within a relatively short time frame.  I have made some orders for a degree of cumulation in respect of some of these offences.

35As well as the matters to which I have referred, I must also take into account the need for general and specific deterrence.  Specific deterrence is relevant in view of your prior criminal history and the nature of this offending.  General deterrence is also of considerable importance in a case such as this.  All of these types of offences must be discouraged, particularly the aggravated burglary and offences of violence.

36I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.

37Your counsel submitted I ought impose a sentence of imprisonment of time served.  It was submitted on behalf of the prosecution that a sentence of imprisonment was required but there ought be a total effective sentence with a non-parole period.

38Having regard to all relevant factors and in particular the range and nature of your offending I am satisfied I have no alternative but to impose an immediate custodial sentence with a non-parole period.

39The most serious offence is the aggravated burglary.  I agree with your counsel's submission that this aggravated burglary ought be characterised is lower than mid-range in terms of objective seriousness.  The sentence on the aggravated burglary will be the base sentence.

40It was submitted on behalf of the prosecution that there ought be a finding pursuant to s.89C of the Sentencing Act 1991. This was opposed by the defence. In view of the limited information before me and relatively brief summary of facts I do not propose to make a finding pursuant to s.89C of the Sentencing Act 1991.

41Having regard to all relevant facts and appropriate sentencing principles, I sentence you as follows.

42Charge 1, convicted and sentenced three months' imprisonment.

43Charge 2, convicted and sentenced to two years' imprisonment; that is 24 months.  That is the base sentence.

44Charge 3, convicted and sentenced to four months' imprisonment.

45Charge 4, convicted and sentenced to four months' imprisonment.

46Charge 5, convicted and sentenced to six months' imprisonment.

47The Summary Charge 9, convicted and sentenced to one month's imprisonment.

48The Summary Charge 10, convicted and sentenced to six months' imprisonment.  That is the charge of dangerous driving.  On that charge I also make an order in relation to the motor vehicle licence.  Any motor vehicle licence is cancelled and the prisoner is disqualified from obtaining a motor vehicle licence for six months.

49Summary Charge 12, convicted and fined $250.

50Summary Charge 13, convicted and sentenced to one month's imprisonment.

51The Summary Charges 7, 8, 11 and 15 were withdrawn.  There will be a formal order that those matters are struck out.

52I direct that one month of the sentence imposed on Charge 1, one month of the sentence imposed on Charge 3, one month of the sentence imposed on Charge 4, two months of the sentence imposed on Charge 5, two months of the sentence imposed on Summary Charge 10, and one month of the sentence imposed on Summary Charge 13 be served cumulatively upon the sentence imposed on Charge 2 and upon each other; otherwise the sentence is to be served concurrently.

53The total effective sentence is 32 months' imprisonment.

54The non-parole period is the minimum term that justice requires you to serve having regard to all the relevant circumstances that exist.  For that reason, it cannot be fixed automatically.  All relevant factors and sentencing principles are to be taken into account.  I have to consider when you should be eligible for mitigation of confinement and in turn rehabilitation under conditional supervision.

55In all the circumstances, I direct you serve a minimum term of 21 months before becoming eligible for parole.

56As prescribed by s.18(4) of the Sentencing Act, I declare that the period of time you spent in custody is 643 days which is to be reckoned as time already served under the sentence.  I direct that such be noted in the records of the court.

57There is an application made the prosecution for a forensic procedure for the taking of samples pursuant to s.464ZF of the Crimes Act. I intend to make an order pursuant to s.464ZF of the Crimes Act that you undergo a forensic procedure for the taking of samples, in accordance with those provisions, until a sample of sufficient standard is obtained for placement on the database.  My reasons for making the order will be published on the order which I will sign and I must inform you as a matter of law that a member of the police force may use reasonable force to enable a procedure to be conducted.

58I make the forfeiture order that was sought by the prosecution.

59Pursuant to s.6AAA of the Sentencing Act, I state that the sentence and non-parole period I would have imposed but for the plea of guilty is a sentence of four years' imprisonment with a non-parole period of two years and six months.

60Are there any issues about the mechanics or the figures?

61MR CECIL:  No, Your Honour.

62HIS HONOUR:  No.  Thank you for your help.

63We will just adjourn sine die.  Thank you.

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