Director of Public Prosecutions v Kelly

[2017] VCC 1633

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01035
CR-17-01038
CR-17-01134

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICKI KELLY
BRETT KELLY
PHILLIP SATATAS

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2017
DATE OF SENTENCE:	31 October 2017
CASE MAY BE CITED AS:	DPP v Kelly
MEDIUM NEUTRAL CITATION:	[2017] VCC 1633

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. D'Arcy	Office of Public Prosecutions
For Accused Kelly	Mr R. Backwell	Theo Magazis & Associates
For Accused Kelly	Mr A. Sim	Tony Hargreaves & Partners
For Accused Satatas	Mr J. McQuillan	James Dowsley & Associates

HER HONOUR:

1On 27 November 2016, each of you, Ricki Kelly, Brett Kelly and Phillip Satatas confronted a man parked in his car in a suburban street in Diamond Creek.  He was known to at least two of you, Ricki Kelly and Brett Kelly.  You pulled him out of his car, assaulting him by punching and kicking him.  You, Ricky Kelly, attacked him with what he thought was a Taser, but which actually turned out to be a blowtorch.  Burn marks were later found on the sleeve of his jacket and the blowtorch was found in the street.

2He was forced into the boot of his own car and driven away by one of you, with the other two following in another car, the car in which the three of you had originally arrived.  At some stage, the two cars stopped and the boot was opened.  The victim's mobile telephone was taken from him, his shoes and socks were removed and his feet or his ankles bound with duct tape.

3He offered the three of you his car in settlement of a debt that was said to be $1,900, said to be owed by him to Ricki Kelly.  But you, Ricki Kelly, apparently refused that offer.  He then had a sock stuck into his mouth to gag him.  The boot was closed and he was driven off again.

4The three of you took him to Ricki Kelly's home in Heidelberg Heights.  He was carried inside, still bound, placed on a chair.  His hands were then bound as well and he was further assaulted.  The assault included kicking him and you, Mr Satatas, stepping on his head and back while he was on the ground.  He was threatened with his life.

5It would appear that he was at the house for somewhere around about six hours.  Shortly before four in the morning, he was returned to the boot of his car and driven away again.  Again, one of you was driving his car and the others followed in another.

6About half an hour later, the two cars were seen at an address in South Morang.  Sometime after that, the victim's car was dumped with him still bound, gagged and locked in the boot on the side of Plenty Road, about four and half kilometres away from the earlier South Morang sighting.

7The victim ultimately managed to kick the boot open, but he was unable to get out.  Photographs taken when he was ultimately found show that he was in effect, wedged into the boot and unable to get out because of the way he was found, the way he was placed in the boot and the way he was bound.

8At about eight in the morning, someone saw him in the open boot of the car and police and emergency services attended.  It follows from that that his ordeal lasted for approximately 11 hours from the time he was first approached and accosted in Diamond Creek.  A medical examination later that day and a further examination at the Institute of Forensic Medicine some days later showed that he suffered bruising and abrasions all over his body, to his head, his neck, shoulders, arms, back and both legs.

9Forensic analysis of the car, telephones and various CCTV footage, as well as the collection of eye witness accounts ultimately led to the identification of all three of you as the offenders.  It is these circumstances that give rise to Charge 1, false imprisonment, Charge 2, intentionally cause injury and Charge 3, theft of the victim's car by the manner in which it was used by you, and his mobile telephone and some personal items.  They are the three charges to which each of you has pleaded guilty.

10Each of Charges 1 and 2 are course of conduct charges, covering for Charge 1, the false imprisonment from the time of the first interception of the victim, until the time of his discovery at eight the following day on the side of Plenty Road, and Charge 2, the intentionally causing injury, relating to all the injuries suffered by the victim during the sustained and successive beatings inflicted on him over that time.

11The maximum term of imprisonment for each of those three charges is ten years.

12You, Ricki Kelly, were arrested on 2 January 2017.  You made a no comment interview.  A search of your house revealed a container with 5.3 grams of methamphetamine, which you have now acknowledged was yours, and the acknowledgement of possession by you of that methamphetamine gives rise to Charge 4, to which you alone have pleaded guilty, possession of a drug of dependence, namely methamphetamine.

13Although the quantity is a trafficable quantity, it is accepted for the purposes of the plea that the methamphetamine was for your personal use.

14You, Phillip Satatas, were arrested on 7 January and you too made a by and large no comment interview.

15You, Brett Kelly, had gone to New Zealand on a pre-arranged family holiday on 31 December 2016, and you were arrested upon your return on 14 January 2017.  In the course of the interview, you acknowledged that a container of dried cannabis containing 272.8 grams of cannabis, which was found at your brother's house on the day he was arrested, 2 January, was yours, and it is your admissions in respect of that cannabis that gives rise to Charge 5, concerning you alone, possession of a drug of dependence, namely cannabis.

16Again, consistently with the way the possession of the methamphetamine charge in relation to your brother was dealt with, although the quantity is well in excess of a trafficable quantity, it is accepted for the purposes of the plea that that cannabis was for your own use.  Therefore, the maximum term of imprisonment for the two drug possession charges is, in the circumstances, 12 months.

17In his victim impact statement, the victim said that he suffers post-traumatic stress, loss of appetite, nightmares, trouble sleeping and flashbacks to when and how it all took place.  That he has become depressed, fearful, anxious, suffers resentment, anger and frustration, and that it has affected his trust with everything and anyone.

18He lost four teeth.  Others were infected, after being loosened as a result of the assault.  He said that was extremely painful, sensitive and annoying, and it means obviously that it impacts on his enjoyment of his life.  He suffers muscle pain in his neck and lower back.

19He finds it difficult to go out to places socially.  He lives in fear and feels safest and calmest at home.  He says he no longer associates with his friends because he feels the less he sees people, the better. 

20Now, these are not surprising responses from somebody who was subjected to the ordeal that he was.  You do not have to have a victim impact statement to expect that those are the sort of responses somebody would feel, having been subjected to the ordeal that he was.

21It was accepted for the purposes of the plea that the victim knew both you, Ricki Kelly and you, Brett Kelly.  When asked what this was all about, the victim had told the police that he owed you, Ricki Kelly, a debt, $1,900.  He said it was for rent.

22No explanation was advanced by any of the three of you for your conduct on arrest or in the written outlines filed for the plea.  I am satisfied having heard the pleas and after making specific enquiry of defence counsel and noting the continued silence on the subject, that the failure to advance any explanation for this attack occurred on this victim was a deliberate silence.

23You, Brett Kelly, told Mr Newton, the psychologist who assessed you, that it was related to a drug debt owed to Ricki Kelly.  That was not relied on in written or oral submissions on your behalf, and it was not advanced on behalf of either of the other two accused.  I am not prepared for sentencing purposes to make any finding that this was for a drug debt, nor I must say, am I prepared to make a finding for sentencing purposes that it was in debt for rent as the victim said.

24For reasons that I will explain later, I am not prepared to act on Brett Kelly's self-report to Mr Newton unless there is credible evidence from another source to support it.  What that means is that I can make no findings as to what motivated this attack.  Whether it was debt related and if so, the nature of the debt; whether this was a pre-emptive strike; or a reprisal for some other cause; or motivated by something else entirely.

25I can make no finding as to whether the accused or any of you acted as you did because you were personally owed money by the victim, for whatever reason, which he had not repaid when he should have, or whether there was some other grievance that one or more of you had with the victim.

26I can make no finding as to whether any of you were lending yourselves to a cause of one or more of your co-accused.  I can make no finding as to whether all three of you were acting at the behest of somebody else.  I can make no finding as to whether you or any of you are maintaining a silence out of fear of a co-accused, fear of somebody else or as a result of an allegiance or loyalty to some sort of gang, or whether silence springs from shame or embarrassment.  There is simply no evidence about that.

27What I do infer from the absence of explanation is that the weight to be given for cooperation of each of you with the administration of criminal justice is somewhat limited as a result.  Each of you has pleaded guilty and did so at the time of committal, before a contested committal.  That indicates an acceptance in my view that the evidence resulting from investigation was sufficient to support convictions for the charges to which you have ultimately pleaded guilty.

28I am satisfied that the pleas acknowledge the strength of the prosecution case implicating each of you in the attack on the victim.  A trial which would have been complex, expensive and of some duration has been avoided and the victim has been spared the ordeal of giving evidence.  All of those matters count in your favour.

29But the absence of explanation tempers the weight to be given to the guilty pleas insofar as they are relied on as evidence for remorse, as that term was so well explained in by the Court of Appeal in Barbaro and Zirilli.[1]  It may be that the silence is an acknowledgement that no explanation for why this happened is migratory.  But insofar as in terms of Barbaro and Zirilli, the road to redemption requires a complete and honest confrontation of your wrongdoing,  your silence on the reasons does not indicate what the court characterised in Barbaro and Zirilli genuine penitence and contrition and a desire to atone.

[1] Barbaro v The Queem; Zirilli v The Queen [2012] VSCA 288.

30Or as the Court of Appeal put it in the earlier case of Hinton, Peterson and Hamment,[2] the failure to disclose any motive for the offending can be taken to demonstrate an absence of remorse.

[2] [2008] VSCA 34.

31This offending is a serious and even, as the prosecution said, cruel example of the offences of false imprisonment and intentionally causing injury.  It is a fair inference on the facts, that the victim was lured to the area in Diamond Creek by pre-text and then set upon by the three of you.  That is, that the attack was carried out as a result of an agreement between the three of you, and what happened to the victim was within the scope of that agreement.

32He was outnumbered, three to one.  You are all fit men in your late 20s, all used to physical work.  One of you, in fact, is a personal trainer.  The victim was a man nearly twice your age.

33The attack was brazen.  Some of it took place in a suburban street in the evening before it was fully dark.  It was a residential area and it was carried out without concern that two of you were known to the victim.  One of the places you took the victim to was your home, Ricki Kelly.

34The victim was rendered powerless, and not just because it was a three on one attack.  His shoes and socks were removed, he was gagged with his own sock, and both his hands and feet were bound with duct tape, and his phone was removed from him.  It was protracted and the various apparently random changes of location, the types of assault and the timing of when they started, stopped and resumed in my view, add to the cruelty as well as to the viciousness of the attack.

35At the roadside, when the victim was first attacked, he was punched, attacked with what he thought was a Taser and after he fell to the ground, repeatedly kicked and stomped on.  He was manhandled into the boot of his own car and the boot forcibly closed over him.  He was driven around in the boot of his own car for some time before the car stopped.  The car stopped and the boot was opened.  His phone was then removed from him, thus cutting off any avenue of notifying anyone, and his offer to settle the debt that he apparently owed to Ricki Kelly by offering him the car was declined.

36His footwear was removed.  One of his own socks were stuffed in his mouth to gag him and he was ultimately bound both by hand and feet with duct tape.  He was further terrorised by then being carried into Ricki Kelly's house, made to sit on a chair where he could see and hear, but with both hands and feet bound and shoeless and gagged, unable to defend himself or protect himself.

37On my count, he must have been at Ricki Kelly's house for about six hours and he was repeatedly punched and threatened with his life.  At times again, he was kicked and stomped on when he fell to the ground.  He was again placed in the boot of the car, still bound by hands and feet, barefoot and gagged and driven a considerable distance on this last occasion from Heidelberg Heights to South Morang, and his car was eventually left by a roadside where he was still bound and gagged and left in the locked boot.

38It was only his efforts in repeatedly kicking at the boot until he was able to force it open that led to his discovery, still bound and crammed into the by then opened boot, some three and a half hours after the car was last seen in South Morang.  Had he not been able to kick the boot open, who knows how long he would have been locked helpless in the boot, or what state he would have been in, when he was eventually discovered.  None of you took any steps to ensure that he was found, or safe.

39It is clear therefore that subject to considerations personal to each of you, denunciation, deterrence and just punishment loom large in a sentencing mix.  No civilised community can countenance such brutalised behaviour, such callous cruelty to a fellow human being.  Those who engage in such behaviour must expect to be roundly condemned and to be punished with a severity which marks the gravity of the conduct.  The sentence must serve as a clear warning to others who might contemplate treating someone in such a way.  They too will face stern punishment if they treat someone in the way you treated this victim.

40What then are your circumstances?  All three of you are men in your late 20s or early 30s now.  All of you have a number of factors that count in your favour.  All of you grew up in stable, non-violent, loving and hardworking families.  You all had the benefit of good educational opportunities.  You were not exposed to violence, parental substance abuse, neglect or cruelty in your upbringing.  You all continue to enjoy the support of your parents who were at court with you at the time of the plea hearing and today again on sentencing.

41Ricky and Brett Kelly's parents wrote of their heartache at seeing their sons offending in such an appalling way, in a way so contrary to the values that they hold and had sought to bring their children up to hold.  Yet, they have not withdrawn their love and support.  I accept Phillip Satatas, that your parents' continued support echoes the same conflict of heartache and continued parental love.  You are all fortunate to have that continued love and support from your parents and to have had the benefit of upbringings as safe, stable and loving as you have had.

42None of you have had lives blighted by mental illness, personality disorder or intellectual disability.  There is nothing in those causes which might help explain how you could engage in such behaviour and nothing which might otherwise reduce your moral culpability.  It also means that of course, those factors, the absence of mental illness, personality disorder or intellectual disability are all positive rehabilitative factors counting in your favour as well.

43You all have good work histories.  You all have good employment skills and good prospects to return to gainful employment.  All of you report varying degrees of drug use and although you all have criminal histories, they are different from each other.  All of you have been dealt with in the past for other offending.

44All of you are the fathers of young children, all boys coincidentally, and although you, Brett Kelly, are the only custodial parent, all of you I accept have been actively involved in parenting your sons.  You are now only too acutely aware of the hardship that they and their mothers will face as a result of what was conceded, at least on the behalf of Ricki Kelly and Phillip Satatas to be the inevitable custodial sentences that flow as a result of your conduct and your guilty pleas.

45I accept that imprisonment will be more onerous for each of you as a result of that belated appreciation of the impact of your wrongdoing on your children, on your parents and on your partners or former partners.  It should be noted though, that your responsibility to your children and the impact of your offending on them, your current or former partners and your partners was clearly not something that played on your minds and deterred you from embarking upon this behaviour.

46Neither you, Ricki Kelly, nor you, Brett Kelly are Australian citizens, and as a result of your guilty pleas to these charges, each of you faces the risk the deportation to New Zealand, your country of birth and citizenship.  You, Phillip Satatas, do not face that added uncertainty.  I accept that imprisonment will be more onerous for each of you, Ricki Kelly and Brett Kelly as a result of this uncertainty as to whether your hopes for a better life in Australia and your hopes for continued contact with your parents who had left New Zealand and settled in Australia will be dashed.

47You, Ricki Kelly, are 29, the father of an eight year old son who lives with his mother in New Zealand.  You have maintained regular contact with him and a good relationship with his mother since the relationship between you and his mother came to an end.

48Since you came to Australia three years ago, you have maintained regular contact with your son, including I was told, twice yearly visits to Australia where he has had and enjoyed face to face contact with you and your parents.

49You parents came to Australia when you were only 17.  You followed nine years later in 2014.  By the time you came to Australia, you had appeared before courts in New Zealand on nine occasions, between April 2005 and April 2009.  Three of those appearances resulted in serving terms of imprisonment.  The last, a little hard to calculate because the New Zealand extract of prior convictions is formulated differently to the ones we are used to seeing here.  So it is hard to formulate exactly, but it would appear your last term of imprisonment was for a number of years.

50The offences for which you were dealt with in New Zealand were by and large, for burglary, dishonesty, drugs and minor weapons offences.  You have no previous convictions for violent offending.

51You left school at the end of Year 11 and it would appear that apart from those times of serving terms of imprisonment, you had no difficulty in obtaining or maintaining employment.  Initially when you left school, you worked in a bakery, but most of your work history in New Zealand was on farms.  When you arrived in Australia, you quickly obtained work in a bakery.  Ultimately, you completed a personal training course and up until the time of your arrest, you were working as and running your own business as a personal trainer.

52You were remanded in custody upon your arrest and applications for bail were unsuccessful.  Whilst on remand, you completed Occupation Health and Safety and vocational courses.  Although as a remand prisoner you are not required to work in prison industries, you have applied yourself to obtaining qualifications, doing courses to assist in your own self-management, and to increase in your vocational qualifications, as well as giving you occupation.

53I am told that you have been working for the last nine months in the metal shop.  That is work you have enjoyed.  You have enjoyed the skills that you are learning and you are hoping to be able to build on that to improve your employment prospects on release.  I accept you have used your time in custody well.

54You were assessed by Dr Aaron Cunningham for the purposes of the plea.  Your cognitive functioning on testing falls within the normal range.  You recorded strengths in non-verbal reasoning and weaknesses in verbal reasoning.  Personality testing using the MMPI-2 restructured form returned a valid test profile with elevations on anti-social behaviour, anxiety and substance abuse.  Dr Cunningham concluded that the profile was consistent with your offence and drug use history, as well as the anxiety that you were feeling about the court outcome.

55He noted that your profile was not consistent with an individual suffering mental illness.  He considered that you presented with insight into the wrongfulness of your offences.  You characterised your behaviour as stupid.  You told him that you had been abusing methylamphetamine with associates and that the group did not appropriately think through their actions.  Dr Cunningham noted that your empathy for the emotional consequences to your victim was limited.

56I was told by Mr Backwell, consistently with what you told Dr Cunningham, that you had a significant history of cannabis abuse throughout your teens and up until the time you came to Australia.  You reported to Dr Cunningham that you tried synthetic cannabis and stopped because you had perceived it had a negative effect on your mental state, and that you then remained drug free for approximately two years.  That seems to coincide with the time of your arrival in Australia up until about 2016.  You attributed your ability to remain drug free during that period to having stable employment.

57I was told that you had only been using methamphetamine for six months in the period leading up to the offending behaviour that brings you before me, but that your habit had rapidly escalated so that at the time of your offending, you were using several grams per week.  I was told that you ceased drug use on your remand.

58Somewhat surprisingly, given this drug history that you report, you have not been subjected to any drug testing for the whole time that you have been in custody, nearly 12 months.  It can be inferred given your engagement with the rehabilitative and vocational courses that you have, and your work history in the metal shop that your reported abstinence since remand is likely to be accurate.

59I accept Dr Cunningham's assessment that your prospects for rehabilitation are dependent on your abstaining from substance abuse and association with negative peers, and that maintaining stable employment would help also in reducing your risk factors.  Conversely, he notes continued drug abuse and association with drug abuse and peers would lead to a higher risk of reoffending.

60I consider in the circumstances that your prospects for rehabilitation are reasonable.

61You, Brett Kelly, are the older brother of Ricki Kelly.  You too remained in New Zealand when your parents came to Australia, but you followed them before your brother, arriving five years after them in 2012.  Like your brother, Ricki, you finished your schooling after Year 11, but you went onto further studies at a TAFE College to actually pass your Year 11 before moving onto work as a farm labourer.  You continued working on farms in New Zealand, moving from labourer to managerial roles by the time you came to Australia.

62On arrival here, you commenced and completed a small engine mechanical apprenticeship and worked with the one employer, a seller and servicer of lawn mowers from the time of your arrival until the time of your arrest in respect to these offences.

63You spent approximately three and a half months on remand after arrest and before being released on bail.  Your former employer was very supportive, but ultimately upon your release, you decided to establish your own business doing garden maintenance work.  It appears that the return to working in the outdoors consistent with your farm work history was something that you enjoy.

64I am told that you had built your business up to being actively employed six days a week, and much of it regular return business for clients.  Glowing testimonials from two of your current clients, as well as from your former employer who came to court, who remained supportive of you and continues to offer employment if and when available to you were presented to me in the course of your plea.

65When you came to Australia, you were accompanied by your partner, with whom you had, by then, been in a relationship for three years.  That relationship continues today and the two of you now have two children, aged eight and six.  Your partner is in full time employment and your remand in custody when you were first charged placed considerable strain on her and caused distress to her and the children.  I was told and I accept that you have been an active parent for the children, both before your remand and again, upon your release on bail.

66You too report a history of substance abuse.  According to what you told
Mr Patrick Newton, the psychologist to whom I have already referred, you engaged in heavy drinking between the ages of 16 and 23.  Of your criminal history in New Zealand, the first five court appearances between 2003 and 2005 can all be characterised as minor dishonesty and stret offences, all of which you said were committed whilst under the influence of alcohol.  None of those resulted in terms of imprisonment.  They were dealt with either by fine or community service.

67You had only one other court appearance after that.  That was in 2009 and it was cultivation of cannabis.  That too resulted in a fine disposition and that too appears to relate to your own use.  You have not previously served a term of imprisonment.

68You told Mr Newton that you had been a heavy cannabis user from the age of 16 and that from the age of 17, you were consuming up to a gram a day.  You told him your cannabis use had increased from 2015, so that is well after your arrival in Australia, up to a point where you were consuming several grams a day on a daily basis.  You also told Mr Newton that from May 2016, you had begun to use methamphetamine, and that you progressed within weeks from weekend only use to daily use, several times a day.

69Mr Newton concluded that you were clearly physically dependent on cannabis.  He said that you required an extreme amount from about 2015 to obtain the effect you desired, and that your use of cannabis was compulsive and persistent throughout each day.  He reported that it was only with your remand in custody that you advised you were able to cease using cannabis and methamphetamine.

70The account of the extent of your cannabis and methamphetamine use does not sit comfortably with the testimonials from your wife, or your employer, or for that matter, your parents.  I am not prepared to accent Mr Newton's assessment based on your self-report as to your levels of cannabis and amphetamine use in 2015 and 2016, up to the time of offending.

71Mr Newton concluded that at the time of his assessment of you, you were in a period of remission from severe addiction to cannabis and methamphetamine, and that your addiction detrimentally affected your ability to engage in mainstream social or occupation or interpersonal activities.

72It beggars belief that you could have continued to work, maintain the good relationship with your wife in the terms she described it, and your children at the level of use of cannabis and methamphetamine that you reported to Mr Newton.  I am not prepared to accept Mr Newton's diagnosis that your drug use at the time of offending was sufficiently problematic to meet the DSM-V criteria for the diagnosis of severe substance use disorder or the qualification that at the time of the assessment it was in remission.

73Mr Newton also concluded that you had struggled to establish yourself in stable adult roles, and that whilst you had established yourself in stable relationship, that your vocational development remained piecemeal and adolescent in style.  It was his opinion that you were dependant on significant others and prone to be influenced by your peers, in particular, your brother to an inordinate and counterproductive degree.  Again, that does not appear to be borne out by the evidence of the testimonials and the evidence in relation to your employment history, and your engagement as a partner and father.  I do not accept those conclusions drawn by Mr Newton because they do not sit with the other evidence placed before me.

74Mr Newton concluded that your insight in relation to your drug use remained limited and that your understanding of relapse prevention was poor.  He said there was a strong need for education and counselling to consolidate the changes you had made, and to assist you to make real your expressed desire to avoid further drug related problems.

75In the course of the plea, it became clear that when you had been released on bail, it was a condition of your bail that you attend St Vincent's Department of Addiction Medicine and to accept their recommendations for treatment.  I was told that condition was imposed following evidence from your mother, a medical scientist employed at St Vincent's, had facilitated the referral to the St Vincent's Addiction Medicine Clinic.

76A report from Professor Odgen from the St Vincent's Department of Addiction Medicine dated three days ago revealed that you had not attended as directed by your bail.  In fact, you had presented on 28 October for the first time.  That was just days before the plea hearing.  You reported to Professor Ogden that you had been abstinent from cannabis and methamphetamine since arrest.  A hair sample which you provided that day was tested and it did not test positive for cannabis or amphetamines or other drugs.  The range results for hair tests can refer back to two months from the date of provision of the sample, and that is the only objective evidence before me of either substance abuse or substance abstinence.

77You blame your participation in this offending on your younger brother.  You told Mr Newton it was he who initially supplied you with methamphetamine and it was at his suggestion or request that you accompanied him to meet and to attack the victim.  You told Mr Newton that you knew that what you had done was wrong, and that you knew you should not have been there or doing that stuff.  But you told him you had felt you had to look out for your brother.

78Consistently with what you told Mr Newton, Mr Sim put on your behalf on the plea, that your culpability was less than that of your brother because you attended at his instigation.  It was also put, notwithstanding the fact that the plea agreement reached at committal and the plea summary presented before me was presented on the basis that each accused was criminally liable for the commission of the offences of false imprisonment and intentionally cause injury and theft by reason of principles of statutory complicity.

79Nonetheless, it was put to me that your involvement in the assault on the victim and his continued detention was less than that of your brother and Mr Satatas, and should be reflected in the sentence.

80In my view, there is no warrant for acceding to such a submission.  The case against all three accused was put and I am satisfied the pleas were entered and accepted on the basis that each of you was responsible, not only for your own individuals acts, but for the conduct of your co-accused, it being accepted that what happened was within the scope of the agreement.

81There is no evidence to suggest that you withdrew from the agreement at any time whilst it was on foot and the victim was the subject of the offences to which you and your two co-accused pleaded guilty.

82If anything, the position taken on your behalf indicates that you are still not prepared to accept and acknowledge your full responsibility for this offending.  Not only do I think it likely that you have exaggerated your substance use in order to seek to excuse your behaviour, I consider that in the circumstances, it is also likely that you are seeking to minimise your role and responsibility for the offending itself.

83Whilst you express some belated remorse for the victim, in my view, the bulk of your remorse is directed towards feeling sorry for yourself and the position you find yourself in, and you are seeking to blame either substances or other people to a greater degree than yourself.  I see no reason to impose a disparate sentence on you by reason of your role.

84I consider that your prospects for rehabilitation too for these reasons can probably be characterised as reasonable.

85Mr Sims submitted on your behalf that a combination sentence should be imposed.  That is, a term of imprisonment followed by release on a Community Correction Order.  In fact, Mr Sim argued that the term of imprisonment should be no longer than the time something under four months that you had already served on remand.  I consider that to be totally unrealistic and a disproportionately low sentence, having regard to what I have already identified about the circumstances of the offending and your personal circumstances.

86Since the amendments to s.44(1) of the Sentencing Act 1991 (Vic), the maximum term of imprisonment which can be imposed in addition to a community correction order is now only 12 months. At the time of the decision of the Court of Appeal in The Queen v Boulton,[3] the maximum was of course double that, two years.  That allowed for a much more significant custodial term before release on a community correction order, and in my view, the observations the Court of Appeal in Boulton must now be calibrated by reference to the availability of that much shorter maximum term of imprisonment.

[3] [2014] VSCA 342.

87I do not consider that a maximum term of imprisonment of 12 months or less, followed by a community correction order no matter how long or onerous the conditions would be, is sufficient to adequately mark the seriousness of this offending and your role in it.

88Even if I had been of the view that a combination sentence involving a term of imprisonment of no greater than 12 months was appropriate and proportionate to the circumstances of the offender and the offending, I would not have considered you a good candidate for release upon a CCO.  I have already noted the fact that it was a condition of your bail that you attend St Vincent's Addiction Clinic, that attendance being facilitated through your mother's intercession.  You failed to attend the clinic despite the fact that it was a bail condition and no adequate explanation has been advanced for your failure to do so.

89When I asked Mr Sim what your explanation was, he said that in your view, you were successfully abstaining without assistance and that you were concentrating on building your business after your release.  If that was the attitude that you displayed to a court order and one pre-sentencing where it must have been clear to you that adherence to a bail condition might be powerful evidence of a demonstrative commitment to adherence to CCO conditions, then I can have no confidence that you would prioritise a court order over whatever else you thought justified a great priority at the time.

90Mr Sim observed at the time of the plea hearing that the submissions made by Mr Darcy in relation to the Director's position on sentence had been advanced at the time of the plea negotiations at committal and had not been revisited as a result of the matters advanced on the plea.  Between the end of the plea yesterday and the commencement of the hearing today, Mr Darcy has advised he sought instructions from the Senior Crown prosecutor put before the Senior Crown prosecutor the matters that were advanced and relied upon on your behalf, and that the position of the Director remains the same.  That is, that a combination sentence is not within the range.

91You, Phillip Satatas, come before the court as a 28 year old with the most limited criminal history of the three.  You have only one previous court appearance.  That was in November 2013 and it can properly be described as minor offending.  There were four minor drug use, cultivation or possession charges all arising out of a search conducted on a single day, one weapons offence which was possession of an ornamental knife stored in the house, not carried upon you, and there were apparently two or three older offences which were revived at the time of the 2013 matters where there was a break in and two attempted break ins to cars.  You explained that as the result of much younger and drunken behaviour in company with others.

92The gravity of that overall offending can be measured in part by the disposition which was a without conviction adjournment for a period of 12 months.  There was no breach of that condition to be of good behaviour.  Like the other two, there is no other offending pending.

93You are a qualified carpenter and you have a very good, steady, hardworking history.  After what appears to be an unremarkable primary schooling, your early secondary schooling was marred by what could be characterised as your disruptive behaviour.  That coincided with a family tragedy and although at the time, you were a boy and perhaps felt to be a little insulated, it may well have had a significant impact on your behaviour.

94But your disruptive behaviour led to your expulsion from one private secondary school and what appears to be a delighted farewell from your second secondary school, when your parents relocation led to your being removed from that school and being moved to another area.  However, at your third secondary school, you settled in well, successfully completed your last three years of secondary schooling there and graduated with your VCE.

95When you left school, you wanted to be a firefighter.  You enrolled in and commenced a fire technology course at Swinburne University.  However, you did not apply yourself to your study and dropped out before completion of your first year.

96You went to work after that, but your early years of work mirrored your early years of secondary schooling.  Three jobs, each lasting less than a year, each of them being left because you either did not like the job or did not like the people.  However, by the age of 21, you clearly matured.  You commenced a carpentry apprenticeship.  It was something you loved.  You completed it successfully, and remained with your employer until 2016 when you left to commence your own business laying custom floorboards.

97It was your remand in custody following being charged with this offending that brought that to an end, and because of the history of remand, release on bail, further remand, further release on bail since then to which I will avert shortly, that was really the end of your employment.  But I accept it was not idleness, but rather, other circumstances that led to your being unable to continue in gainful employment once you were charged.

98You too reported a history of substance abuse.  Binge drinking in your late teens, although it would appear alcohol has not been a problem for you since your early 20s when you by and large stopped drinking.  You report, however having being a regular cannabis user from the age of 18 and using between 1 to 3 grams daily for many years leading up to and right up to the time of your arrest.

99You also report occasional use of ice, although it does not appear to be your drug of choice, and you did not perceive it to be a significant problem in terms of impacting on your behaviour socially or workwise.  You seem to have attributed it a significant role in the offending.  It would appear you were using cannabis and ice at the time of the offending, consistently with your co-offenders.

100I am told that you too have stopped both cannabis and ice use since being charged and you too have done so without any therapeutic intervention.  Your bail conditions certainly required living at your parents address and but for the period when it appears they were out of the country, I am told that they were themselves, active and energetic in seeking to ensure that your bail conditions which included abstinence from substances were adhered to.

101Like Ricki Kelly, you are the father of a boy who lives with his mother, but with whom you have maintained regular contact, for whom you provide considerable care, and like Ricki Kelly, with whose mother you have maintained a good and civilised relationship.  This child is a little younger than Ricki Kelly's son.  He is only five.

102You re-partnered after the breakup of the relationship with the boy's mother and although that relationship broke down not long before this offending occurred, you remain, it would appear, on very good terms with your former partner.  She wrote a very moving testimonial on your behalf and was at court with your parents on the plea hearing and again today to support you.  She had actively engaged with you and providing love and care to your child on the times that he was with you.

103It was not long after the breakup of your relationship with your former partner, your most recent former partner, that you became involved in this offending and it may well be, although you do not seek to rely on that as any excuse, that there is some temporal and perhaps causal connection between the coming to an end of what had obviously been a loving and long term relationship, and the involvement in this offending.

104Through your counsel, Mr McQullian, you acknowledged your moral and legal culpability and I was told that you accepted and had understood from the outset that a custodial sentence was inevitable, and that you had done what you could to prepare yourself for it mentally and emotionally.

105I consider your prospects for rehabilitation too, to be at least reasonable.

106There is a qualification for you as there is for Brett Kelly because although each of your report abstinence, and there has been a period of time in the community as well as in custody, it has been without any therapeutic intervention and so what learning you have as to the triggers for your use and the strategies to avoid relapse is very limited.

107Your history of remand, release on bail, further remand, further release on bail has in my view, created an oppression for you which should have been avoidable.  Like your two co-accused, you were initially remanded in custody when you were charged.  That was not surprising having regard to the nature of the offending.

108Like Brett Kelly, you were successful in an application for bail to the Supreme Court, and released after serving some months on remand and some considerable time before committal.  Your parents provided a surety.  It would appear that you were either not advised or you were ill advised about the need to be re-bailed upon committal.  At the time of the committal, your parents were overseas.  That meant that they were unable to restake the surety that they had provided for you when you were first bailed.  There was nobody else who you either could or would call upon, and you were therefore remanded in custody upon your committal, despite the otherwise acceptance of your entitlement to remain on bail until a sentencing hearing.

109You appeared to accept that fact and as a result, it was some months before you were re-bailed.  You waited until your parents return to Australia, and it seems clear, you did not request or urge them to return to Australia.  In fact, I am not even sure they knew that you had been remanded in custody again.

110What that does mean is that since being charged with this offending, you have spent two periods in custody and have had two periods of release after that, and you have just again yesterday, been remanded in custody again.  That subsequent remand in custody following the committal, it is important to note was not by reason of further offending or breach of bail conditions or by reassessment by the committing Magistrate of the strength of the case against you.  There is, in my view, a considerable hardship that flows from remand, release, remand, release and remand again, and that adds to the burden of imprisonment in a way that an arithmetical calculation of the time spent in custody before sentence would reflect.  I have therefore tempered your sentence accordingly to take that into account.

111Ultimately, I have come to the view that despite the differences in the individual circumstances of each of the three of you, those individual circumstances are not so different as to justify the imposition of different sentences upon each of you for the three charges for which you share joint complicity, or that the differences between each of your circumstances are balanced out by the differences counting in favour against each of the other of you.

112Balanced against the need to take into account as a mitigating factor the uncertainty flowing to Ricki and Brett Kelly in relation to whether they will be deported at the conclusion of their sentences is the oppression of the circumstances in which you, Mr Satatas, were returned to custody post-committal, then released again, before being remanded yesterday, and that in my view, levels out any disparity that might otherwise have resulted from the allowance that has properly to be made for the two Kellys in respect of the burden of risk of deportation and Mr Satatas, because of the in and out, in and out circumstances of his period since being charged.

113Having said all of that, it is an absolute mystery to me why three men in their late 20s, coming from such good families with such good opportunities as they were provided, and with such good work histories and so much counting in their favours could find themselves in the position that you all do.  It does not seem to me that your substance abuse is at all an explanation for it, given the successful ways each of you seem to have been living your lives in your 20s.  It is such a waste.

114I have structured the sentences for each of you to allow a considerable gap between the head sentence and the non-parole period.  I can only hope that each of you will use your time in custody to reflect on what led you to being here today.  To put your substance abuse behind you and to take active steps by way of engaging in such rehabilitation programs as are available.  To ensure that you are in the best position to be able to satisfy the parole authorities that you have developed insight into the particular cycles of substance abuse that each of you have.  That you have learnt the strategies necessary to enable you to remain substance free on your release, and that you have otherwise demonstrated that you have got strategies to remain out of trouble and to go back to living the otherwise good lives you seem to have led until your young adulthood.

115Each of you already has good employment skills and each of you will have opportunities to use or develop them further whilst in custody.  Again, those should count in your favour in seeking to persuade the parole authorities that you should be released upon parole and serve the balance of your sentences on supervision in the community.  Therefore again, I have factored that into that gap that I have imposed between the head sentences and the non-parole period.

116Could you now all please stand.

117On the charges to which you have pleaded guilty, you are convicted:

118Ricki Kelly, on Charge 1 of false imprisonment, you are sentenced to be imprisoned for a period of three years.

119On the charge of intentionally cause injury, you are sentenced to be imprisoned for a period of three years, and I direct that 12 months of that be served cumulatively upon the sentence on Charge 1 and the other partial cumulation orders I am about to make, and on the charge of theft, you are sentenced to be imprisoned for a period of 12 months, with three months of that to be served cumulatively.

120On that charge of theft, all licenses held by you are cancelled and you are disqualified from driving for a period of six months.

121On Charge 4 of possess methamphetamine, you are sentenced to be imprisoned for a period of one month and I direct that that be served cumulatively upon the sentence on the other sentences or partial cumulation orders I have made.

122Brett Kelly, on Charge 1 of false imprisonment, you are sentenced to be imprisoned for a period of three years.

123On Charge 2 of intentionally cause injury, you are sentenced to be imprisoned for a period of - did I say two or three years?

124MR D'ARCY:  Three.

125HER HONOUR:  Three years.  Yes.  On Charge 2 of intentionally cause injury, you are sentenced to be imprisoned for a period of three years and I direct that 12 months of that be served cumulatively upon the sentence on Charge 1 and the other partial cumulation orders I will make.

126On Charge 3 of theft, you are sentenced to be imprisoned for a period of 12 months and again, three months of that is to be served cumulatively.

127Again, all licenses held by you are cancelled and you are disqualified from obtaining any further licenses for a period of six months.

128On Charge 5 of possess cannabis, you are sentenced to be imprisoned for a period of one month, and that too is to be served cumulatively.

129Phillip Satatas, on Charge 1 of false imprisonment, you are sentenced to be imprisoned for a period of three years.

130On Charge 2 of intentionally cause injury, you are sentenced to be imprisoned for a period of three years, 12 months of that to be served cumulatively.

131On Charge 3 of theft, you are sentenced to be imprisoned for a period of 12 months and three months of that is to be served cumulatively.

132You too have all licenses cancelled and are disqualified from obtaining a further license for a period of six months.

133That cancellation order starts today and runs for six months from today.

134That makes a total effective sentence for you, Ricki Kelly, of four years and four months.  I fix a non-parole period of two years and four months, and declare that the 302 days that you have spent in pre-sentence detention be counted and reckoned as part of the sentence already served.

135Pursuant to s.6AAA of the Sentencing Act, I declare that but for your pleas of guilty, I would have sentenced you to a term of imprisonment of six years and eight months and fixed a non-parole period of four years and eight months.

136Brett Kelly, for you that means a total effective sentence of four years and four months.  Again for you, I fix a non-parole period for you of two years and four months.  It is the same as your brother, and I declare that the 105 days that you have spent in pre-sentence detention be counted and reckoned as part of the sentence already served.

137Again, pursuant to s.6AAA of the Sentencing Act, I declare that but for your pleas of guilty, I would have sentenced you to total effective sentence of six years and eight months and I would have fixed the period of four years and eight months as the time that you are required to serve before being eligible for parole.

138Phillip Satatas, that makes for you a total effective sentence of four years and three months and I fix the period of two years as the time that you are to serve before being eligible for parole.

139I declare that the 174 days that you have spent in pre-sentence detention be counted and reckoned as part of the sentence already served, and I declare pursuant to s.6AAA of the Sentencing Act 1991 (Vic), that but for your pleas of guilty, I would have sentenced you to a total effective sentence of six years and six months, and fixed a non-parole period of four years and six months.

140I make a forfeiture order in respect of all three accused in the terms in which it was sought.

141Are those sentences correct?  Is the arithmetic correct?  Do they reflect what I said I intended to do?

142MR BACKWELLL  It is for Ricki Kelly, Your Honour.

143MR SIM:  I agree, Your Honour.

144MR MCQUILLAN:  Yes, Your Honour.

145HER HONOUR:  Any further orders required to be made?

146MR D'ARCY:  No, Your Honour.

147HER HONOUR:  Thank you.  Could you remove the three prisoners please and the sentence will be on the portal.

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