Director of Public Prosecutions v Kelly
[2019] VCC 492
•11 April 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Unrestricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-18-02148
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD JOHN KELLY |
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| JURAE: | HIS HONOUR JUDGE JOHNS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 March 2019 |
| DATE OF SENTENCE: | 11 April 2019 |
| CASE MAY BE CITED AS: | DPP v Kelly |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 492 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW SENTENCE
Catchwords: Grooming for sexual conduct with a child under the age of 16 years – Failure to comply with reporting obligations – Possession of child abuse material – Plea of guilty – Multiple victims – Offending occurred while on a CCO for similar offending – History of drug use – Some prospects of rehabilitation – Term of imprisonment – Non-parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Brown (For Plea) Ms A. Keath (For Sentence) | Office of Public Prosecutions |
| For the Accused | Mr S. Kandasamy | Victoria Legal Aid |
HIS HONOUR
1Mr Richard Kelly, on 27 March 2019, you pleaded guilty to seven charges of grooming for sexual conduct with a child under the age of 16 years, which carries a maximum penalty of ten years’ imprisonment, one charge of failing to comply with reporting obligations, which carries a maximum penalty of five years’ imprisonment, and one charge of possession of child abuse material, which carries a maximum penalty of ten years’ imprisonment.
2You also accepted your criminal history which commenced in May 2016 and contains very relevant matters.
3The circumstances of your offending was outlined in the prosecution summary. This was Exhibit A on your plea and forms part of these reasons.
4There are six victims in this matter: AM,[1] aged between 14 and 15 at the time of offending, DG,[2] aged 12 years at the time of the offending, RA,[3] CL[4] and JM,[5] each aged 13 years at the time of the offending, and EP,[6] aged 15 years at the time of the offending.
[1] A pseudonym name.
[2] A pseudonym name.
[3] A pseudonym name.
[4] A pseudonym name.
[5] A pseudonym name.
[6] A pseudonym name.
5Charges 1 and 2 relate to the victim AM. Your offending took place between 19 April 2017 and 21 May 2018, a period of just over 12 months. You met AM over Facebook and she told you that she was 15 years old. You engaged in sexualised conversations with her and told her that you wanted to have sex with her in your car. You exchanged photographs with the victim. At your request, she sent you pictures of her breasts and vagina, and in exchange, you sent pictures of your penis. In a VARE recording made on 23 May 2018, AM states that she sent you around
20 pictures, and also sent you a video of her masturbating. At one stage, you discussed meeting AM at a local shopping centre. You indicated that you would have sexual intercourse with her in a car. This meeting never eventuated. Specifically, you discussed meeting, smoking ice, going to the cinema and having sex.6Charge 3 relates to the victim, RA, who you commenced communicating with through the private messaging function on Instagram. RA told you that she was 13. You lied and told her that you were 17 years old and that your name was Josh. During your conversations with RA, you referred to her as “cute”, “beautiful” and “sexy as”. These conversations became increasingly sexualised and you discussed her breasts and sexual acts. This offending occurred over the course of one day, 1 July 2018.
7Charge 4 relates to the victim, DG. Again, you contacted the victim via private messenger on Instagram. You referred to the victim as “cutie” and asked her if she would cheat on her boyfriend.
8Charge 5 relates to the victim CL. You contacted her through private messenger on Instagram over a period between 22 June and 29 June 2018. The victim told you she was 13 years old. You said that you were 17. You engaged in sexualised conversation with the victim and requested that she send you pictures of herself. The victim sent one photo of herself.
9Charge 6 relates to the victim, JM. You communicated with the victim over Instagram between 1 and 4 July 2018. The victim told you that she was 13 years old. You told the victim your name was Joshua Daniel and you engaged in sexualised conversation with her.
10Charge 7 relates to the victim, EP, who was 15 years old. You communicated over Instagram. EP lives in Brazil. You told her that you were 17 years old. You engaged in sexualised conversation with EP and she sent you a picture of her breasts. You continued to request images or videos of the victim. She then sent you a picture of her vagina.
Arrest and Interview
11A police warrant was executed at your address on 9 July 2018. Your mobile phone was seized. You were arrested and conveyed to the Dandenong Police Station. During your record of interview you made admission to the conduct charged. You indicated that you were not actually interested in meeting AM.
12Analysis of your mobile phone revealed that you failed to disclose contact with 15 children, including the victims in this matter. This is Charge 8. Material constituting child abuse material, being images of EP and another child, were also located. This is Charge 9.
Personal Background
13You were born on 20 May 1984 and are now 35 years old. You were aged between 33 and 34 years at the time of the offending. You are one of five children in your family unit. Your siblings live in Victoria, but you only have contact with one older step-brother. Your father passed away in 2007. At the time of your arrest, you were living with your mother in Cranbourne.
14You described your family as having been relatively transient as you moved several times between the ages of two and 22 years due to your father’s work. You recall missing your father and described that you saw him around ten to 12 times a year, and that he was sometimes away for as long as five to seven months at a time.
15You indicated that both of your parents consumed alcohol to excess. You described your mother as often being drunk and at the pokies. You denied that there was any physical abuse at the hands of your father, but there was discipline that may have involved a “flogging”. You did not disclose any history of sexual abuse. You recall that, at times, you disliked your father disciplining you, but that ultimately you respected him for what he was trying to do and looked up to him.
16You left school in either Year 7 or Year 8. You describe yourself as having not being interested in school and that you experienced difficulties being bullied due to your weight.
17You commenced using cannabis at the age of 12 to 13. Your cannabis use increased progressively, reaching a peak of around 14 grams a week at the time of your father’s death. You also commenced using methylamphetamine at the time your father passed away. At the peak of your use, you were consuming up to 3.5 grams per week. You also report experimenting with GHB. You reported making two attempts at suicide following your father’s death as you were struggling with the grief.
18In his report dated 15 December 2018, Mr Candlish opines that you appear to meet the criteria for Persistent Depressive Disorder.
19You have an employment history consisting of working as a removalist for four to five years and working as a fibreglass repairer for eight years. There was a break in your employment between 2006 and 2008. You have not worked since 2014 due to sustaining an injury to your hand in a fight.
20You were in a relationship for a period of 11 to 12 years, commencing in around 1996 and ending in around 2006. You cohabited with your partner for around six years. You report that you both used illicit substances during the relationship, and that this contributed to the relationship breaking down.
Gravity of the offending
21The charge of grooming for sexual conduct with a child under the age of 16, as with any sexual offence against a child, is an inherently serious one. This is reflected by the maximum penalty of ten years’ imprisonment.
22The prosecution contended that the gravity of your offending needs to be assessed in light of the nature of the sexual communication, the degree of persistence, the age discrepancy and the steps you took to preserve your anonymity. It was also submitted that the deception in relation to your age, as well as your attempts to organise a physical meeting with AM, were serious aspects of your criminality.
23It was conceded on your plea by your counsel that your offending falls within what could be described as mid-range offending. Your counsel submitted that other than in relation to AM, the offending periods were of limited duration. It was also submitted that in determining the gravity of these offences, it is of significance that there was no contact, and that the plans to meet with AM were cancelled by you.
24In relation to Charge 8, six of the children you contacted are the subject of Charges 1 to 7. The communication with the other nine children was not sexual in nature. In relation to Charge 9, it was submitted on your behalf that the material was not significant in volume and that it arises directly from the offending contained in Charges 1 to 7. I accept the relevance of these observations.
25There is obvious overlap between Charges 1 to 7 and Charge 8 and 9. I take this into account and have been careful not to punish the same criminality more than once.
26In assessing the gravity of your offending, the number of victims and the duration of the offending is relevant. There are a total six victims. Your offending against the victims, the subject of Charges 3 to 7, ranged in duration from one day to eight days. In relation to the victim, AM, your offending occurred over a protracted period totalling around 13 months. The protracted nature of your offending against AM is a disturbing feature of your offending, as is your persistence in offending in relation to the other victims.
27The victims were all aged between 12 and 15 years. As indicated above, you were 33 to 34 years old at the time offending. This age disparity is an aggravating feature of your offending. As a mature adult, you held a position of power in relation to your victims. You used this power to illicit sexual images and videos for the advancement of your own sexual gratification.
28Another serious feature of your offending is the fact you made plans to meet the victim, AM in person. When organising your meeting, you indicated plans to engage in sexual intercourse with AM in your car. It was submitted on your behalf, and I accept, that you cancelled this meeting. Your subsequent attempts at concealing your identity and evidence of your crimes, however, demonstrate a high degree of moral culpability.
29Ultimately, I accept the submission made by your counsel that this offending falls within what could be described as mid-range. This conclusion is largely based upon the fact that there was no actual meeting between you and your victims. Notwithstanding this, I conclude that your moral culpability in this matter is high and that both community protection, general and specific deterrence and denunciation are of significant sentencing considerations. The fact that your offending occurred in breach of a community corrections order imposed for like offending amplifies the significance of these factors.
Prospects of Rehabilitation
30The prosecution submitted that your prospects of rehabilitation are at best guarded, if not poor. The prosecutor pointed to four matters which called for careful consideration of the need for specific deterrence in your case: i) Your relevant criminal history
ii) The breach of the CCO you were undertaking for similar crimes
breached by this offendingiii) Your lack of appropriate insight in relation to the impact of your offending and the prosecutor referred to Mr Candlish's report at paragraph 74 to 82
iv) Your lack of insight or acceptance of the sexual motivation for your offending and again, the prosecutor pointed to the Candlish report, paragraphs 74 to 82.
31Your counsel submitted there are at least ‘reasonable’ prospects of rehabilitation. It was raised that you have not had the opportunity to engage with any specific sexual offender based programs or interventions.
32On 6 July 2016, you were placed on a community corrections order at the Dandenong Magistrates’ Court for, amongst other charges, two charges of soliciting a child under the age of 16 years for sexual penetration of themselves, one charge causing a minor to produce child pornography and a charge of knowingly possessing child pornography. This CCO was operational at the time of your offending. It is apparent from this that the operation of a CCO did not deter you from your further offending of a similar nature. I take this into account when considering your prospects of rehabilitation.
33Mr Candlish observes that you have a tendency towards emotional detachment and avoidance. You reported to Mr Candlish that you engaged with the victims out of boredom and you believed the victims were over the age of 18. This indicates your limited understanding and acceptance of your offending and its impact. Mr Candlish also observes that there does not appear to be an underlying anti-social orientation. He also observes that, as your offending commenced in 2016, it is demonstrative of late onset offending. Importantly, Mr Candlish opines that your prospects of rehabilitation are contingent upon your
self-motivation and the need to address your underlying drug problem.34Mr Candlish assesses you as being in the moderate to high risk category of re-offending for non-contact sexual offending and in the moderate risk category for a sexual contact offence – in the absence of interventions designed to reduce the risk of re-offending.
35Taking into account your problematic insight and risk profile, as well as your adequate employment history and family support, primarily from your mother, I consider, with some reservation, that you have at least some prospects of rehabilitation. I have taken this into account, along with the fact that you have not previously had the opportunity to complete specific programs relating to sexual offending.
Sentencing Considerations
36In your case, general and specific deterrence are important sentencing considerations. There is a paramount public interest objective in promoting the protection of children. This is particularly so online, where the internet affords a level of anonymity, and offending likes yours is harder to detect. Flowing from this, there is also a need to denounce crimes committed against children such as your crimes.
37In terms of specific deterrence, I accept that your experience in custody will impact heavily upon you and have a deterrent effect. Based upon the report of Simon Candlish, I accept that you may experience some hardship in custody given your personal difficulties. As outlined above, I accept that you have some prospects of rehabilitation. However, the prolonged nature of your offending, particularly in relation to AM, and the fact that this offending occurred whilst you were on a CCO for similar offending necessitate the need to deter you from engaging in similar offending. This is a significant factor in your case.
38I accept that you entered a plea at an early stage. You were committed by way of a straight hand-up brief prior to your committal hearing. Whilst there was no advancement of remorse on your plea, your plea of guilty is particularly relevant as it prevented the victims in this matter necessarily becoming aware that they were victims of your deception. That is, in relation to Charge 8. You are entitled to a discount for your plea of guilty and I take it into account when sentencing you.
39It was submitted on your behalf that your offending occurred in the context of social isolation, drug use, and depression flowing from the loss your father. Mr Candlish in his report observes that most, if not all, of your offending occurred whilst you were under the influence of methylamphetamine. This feature provides some context to your offending and illustrates how your prospects of rehabilitation depend in no small part on you being able to deal with your drug addiction issues.
40By virtue of the sentences imposed on Charges 1 and 2, you fall to be sentenced as a serious sexual offender in relation to Charges 3, 4, 5, 6, 7 and 9. Accordingly, there is a presumption of cumulation. I have taken this into account when determining your sentence. I have also taken into account the principle of totality. I have also endeavoured to ensure that the sentences imposed for each individual charge reflect the relevant objective circumstances and gravity of the offending, and the requirement to avoid double punishment where relevant.
Sentence
41Please stand Mr Kelly. I sentence you as follows.
42In relation to Charge 1, I sentence you to 18 months’ imprisonment. This is the base sentence.
43In relation to Charge 2, I sentence you to 18 months’ imprisonment. This is be wholly concurrent with Charge 1.
44In relation to Charge 3, I sentence you to six months’ imprisonment. I direct two months be served cumulatively upon Charge 1.
45The provisions relating to cumulation for sexual offences where you are being sentenced as a serious sexual offender apply in relation to Charge 3 and a number of the charges that follows, but whilst I have taken that into account, I propose to express the sentence in the terms of the portion that I make cumulative.
46In relation to Charge 4, I sentence you to six months’ imprisonment. I direct two months be served cumulatively upon Charge 1.
47In relation to Charge 5, I sentence you to 12 months’ imprisonment. I direct that five months be served cumulatively upon Charge 1.
48In relation to Charge 6, I sentence you to seven months’ imprisonment. I direct that two months be served cumulatively upon Charge 1.
49In relation to Charge 7, I sentence you to nine months’ imprisonment. I direct four months be served cumulatively upon Charge 1.
50In relation to Charge 8, I sentence you to 12 months’ imprisonment. I direct four months be served cumulatively upon Charge 1.
51In relation to Charge 9, I sentence you to six months’ imprisonment. I direct two months be served cumulatively upon Charge 1.
52That makes a total effective sentence of three years and three months’ imprisonment. I set a non-parole period of two years.
53Pursuant to s.18 of the Sentencing Act, I declare that you have served 276 days of pre-sentence detention and direct that this be administratively deducted from the I have imposed today.
54In relation to Charges 3, 4, 5, 6, 7 and 9, I declare that you have been sentenced as a serious sex offender pursuant to s.6F of the Sentencing Act.
55As a consequence of your convictions on the charge on the indictment, you are to be registered under the Sex Offender Registration Act. The period of reporting is for life.
56Pursuant to s.6AAA, I declare that but for your plea of guilty, I would have imposed a sentence of four years’ imprisonment with a non-parole period of two years and nine months.
57I make the disposal orders as sought.
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