Director of Public Prosecutions v Kelly
[2016] VCC 1556
•19 October 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-00246
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TEGAN KELLY |
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| JUDGE: | HIS HONOUR JUDGE GRANT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 August 2016 |
| DATE OF SENTENCE: | 19 October 2016 |
| CASE MAY BE CITED AS: | DPP v Kelly |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1556 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Hassan | OPP |
| For the Accused | Mr S. Johns 18/8/2016 Mr J.McQuillan 19/10/2016 | M. Brugman & Associates James Dowsley and Associates |
HIS HONOUR:
1 Tegan Kelly, you have pleaded guilty to one charge of intentionally causing serious injury and two charges of criminal damage. The maximum penalties for these offences are as follows:
· Intentionally causing serious injury - 20 years' imprisonment; and
· Criminal damage - ten years' imprisonment.
2 I have heard a summary of the offending. It is not my intention to repeat the whole summary. It has been tendered as Exhibit A in these proceedings.
3
Briefly, the offending occurred in the early hours of 1 July 2015. The victim in this matter is Chloe Dickman. She had commenced a friendship with
Mr Hartwick and was staying at his house in Clifton Springs on the night of the offences.
4 You had a long history of involvement with Mr Hartwick. The relationship was volatile and turbulent. I will say more about this later in these remarks.
5 At approximately 4.00 am on 1 July 2015, you drove to Mr Hartwick’s house and parked in the driveway, behind the victim’s car. You banged on the front door and demanded Mr Hartwick come and speak with you. A heated verbal argument ensued. Upon hearing this, the victim thought it best to leave. She gathered her belongings and left through the front door. She could not leave the property as your vehicle was parked behind hers. You reversed your vehicle out of the driveway and accelerated at the victim’s car with speed, colliding with it. You did this a second time at greater speed. The victim then stood at the back of her car and asked you to stop. You accelerated at speed and drove at the victim. Mr Hartwick attempted to pull the victim out of the way but was unsuccessful. The victim’s leg was crushed between the two vehicles. She could see red flesh, yellow muscle tissue and her leg bone through her ripped tights.
6 You then reversed out of the driveway. Mr Hartwick moved towards the house to call for an ambulance. You again drove forward into the victim’s car forcing it into Mr Hartwick’s car. That car was forced forward and pinned Mr Hartwick between his car and the wall of his garage.
7 The victim managed to make her way into the house to call for an ambulance. You followed her into the house. You yelled at her and attempted to kick her injured leg. The victim pleaded with you not to hurt her and said, “Look at my leg, please call an ambulance.” You kicked the victim in her injured leg three times and punched her to the head. Because of the pain and her fear, the victim wet herself.
8 Neighbours attended to assist the victim and Mr Hartwick held you back when you tried to again approach her. The victim yelled, “Why would you do this to me?” You replied, “Because you keep coming back, how’s the rig now.” This was a reference to the victim’s body, which she described on her Facebook page as her "rig."
9 Ambulance and police attended the scene. The victim’s leg was severely damaged with a de-gloving injury; an extensive section of the skin and fatty tissue was completely torn off the underlying tissue and both bones in the lower right leg were exposed. She was transported to hospital and underwent two operations. The first operation was for debridement and exploration of the wound. The second was to remove a section of tissue from the left thigh and transfer it to the front right leg wound. The victim was monitored in hospital for two weeks and thereafter, required physiotherapy and occupational therapy.
10 The victim impact statement was read to the court. An updated statement has also been provided. The victim has suffered severe ongoing pain and psychological harm. The extensive reconstructive surgery that was required has left her with significant neuropathic pain to her leg. She has developed anxiety, PTSD and chronic regional pain syndrome. She suffered from agoraphobia for many months. Her doctor notes that she is very depressed from being almost constantly in pain. She takes neuropathic medications that affect her memory and she has had to withdraw from her studies for 12 months. Her inability to continue with her passion as an aspiring athlete has made her feel that her future has been taken from her. In short, her life has been profoundly affected.
11 The victim’s mother has provided victim impact statements that confirm the extreme heartache and distress suffered by the victim’s family.
12 Ms Kelly this is very serious offending. You deliberately rammed the victim’s vehicle on two occasions. You then reversed and when the victim stepped between your car and her car and yelled at you to stop, you accelerated and drove at her. Her leg was crushed between the two vehicles. In a further act of aggression, you followed her into the house and kicked her injured leg and punched her to the face. Clearly, in driving your motor vehicle directly at the victim and then kicking her in her injured leg, you were aware that you would inflict serious injury. You achieved that object. Mr Johns characterised the impact of your offending upon the victim as catastrophic, resulting, as it did, in significant long-term physical and psychological harm.
13 In this case, general deterrence, just punishment and denunciation are all highly relevant sentencing considerations.
14 I accept that you come from a background of instability and disadvantage. Your father is unknown to you. Your mother was a poor role model. She had worked in the sex industry and when you were a young child, she commenced a relationship with a violent criminal. He was violent towards your mother in your presence. You recall a childhood that involved regular visits to see your stepfather in prison. As a child, you were frequently left in the care of your grandmother and you felt abandoned, apprehensive and anxious.
15 When you were seven or eight years old your mother moved to Bendigo and you understood this had something to do with witness protection. You moved back to Geelong in year 7 and enrolled at Mathew Flinders Secondary College. To your credit, you completed year 12 at that school.
16
At the age of 15 you commenced a relationship with Bernie McNair who was 40 years old at the time and a boyfriend of your mother. He introduced you to
Mr Hartwick and by the age of 17, you had commenced a relationship with him. You were still a student. He had just come out of prison and was 26 years old at the time.
17 A reference from a school friend confirms that Mr Hartwick was domineering and controlling. He would drive you to and from school and prohibited you from divulging where you lived. In 2005, after finishing school you moved with him to Melton for a short time. You were not able to tell other people where you were.
18 In December 2006, you gave birth to your son William. Once he commenced primary school, you started working at Steggles chickens. You have a good work history.
19 The relationship with Mr Hartwick was, as I have already said, volatile and turbulent. There were periods of stability, punctuated by periods of difficulty and separation. You told Mr Joblin, a forensic psychologist who you saw in April 2016, that the difficulties were frequently caused by Mr Hartwick's involvement with other women.
20
In April 2014, there was a separation and you started a friendship with a work colleague. Mr Hartwick was angry about this and on 18 December 2014, he broke into the house where you were living and assaulted your male friend. He was remanded in custody for 26 days before being bailed into the Credit Bail Program. You visited him in custody and in early 2015, you resumed your relationship. You became pregnant. I was told by Mr Johns that the pregnancy was terminated because of the high level of conflict between the two of you.
Mr Hartwick was angry with you for terminating the pregnancy and you separated in April 2015. In June 2015, following a meeting between the two of you, it was agreed that you would try to reconcile. Mr Hartwick indicated that he would not be involved in other relationships. His failure to comply with his stated intention explains your anger with him on the day of the offences. In August 2015, you again became involved with Mr Hartwick and you became pregnant. The child, Meilah, was born on 30 April 2016.
21 On 18 February 2016, Mr Hartwick was sentenced in the County Court for the offending in December 2014. He received a four month term of imprisonment together with a three year community corrections order.
22 You now have an intervention order against Mr Hartwick and have had minimal contact with him since November 2015.
23 I have detailed this history because it provides a context for the offending.
24 Ms Kelly, you have no history of violence and I accept that the offending comes out of the complexity of your relationship with Mr Hartwick and the anger you felt on the day of the offences. Your behaviour was spontaneous and impulsive. You told Mr Joblin that you could not tolerate reconciling with Mr Hartwick, only to discover he had another relationship.
25 Dr Mari Molloy, a clinical psychologist, who has assisted you between the period 27 May 2015 and 29 September 2016, opines that you had formed a traumatic bond with Mr Hartwick after years of psychological abuse. In her report she states that “it is reasonable to propose that at the time of her offence, Tegan became psychologically overwhelmed with the knowledge that her partner had deceived her in relation to his intention to reconcile and the emotional impact of this knowledge saw her act irresponsibly in that moment.”
26 This is a matter that I make allowance for in assessing the gravity of your offending.
27 However, although the offending may be contextualized in this way, it remains the situation that the offending is very serious. As I have previously said, you used a motor vehicle as a weapon. You drove the vehicle at the victim with the intention of causing serious injury. The victim managed to make her way into the house and you followed her and assaulted her by kicking her injured leg three times and punching her to the head. You made the gratuitous comment, "How’s the rig now?" The victim has suffered serious injuries, injuries that have profoundly affected her life and her future. Notwithstanding the matters raised in mitigation, this offending is far too serious to permit the imposition of a community corrections order or a combined imprisonment/community corrections order.
28 I accept that your background of hardship and disadvantage is a matter that mitigates sentence.
29 You have no prior convictions. Given your disadvantaged background this is an important matter in your favour.
30 You entered an early plea of guilty. It is the acceptance by you of responsibility for this serious offending. No witnesses have been required to go through the stress of giving evidence and you have saved the community the costs and expense associated with a criminal trial. You will be given appropriate credit for all these matters.
31 When the police initially interviewed you, you did not fully accept what you had done. Indeed, you told police that what happened was an accident. However, by the time of the committal, you had accepted responsibility and your plea of guilty is an indication of remorse.
32 Written references have been tendered to confirm that you are a good mother. The fact that you will be parted from your son is matter that will be very onerous for you. It is another matter that mitigates sentence.
33 Importantly for you, I have been advised that your daughter will be able to live with you in prison.
34 Ms Kelly, I am satisfied that you have good prospects for rehabilitation.
35 I note that you have engaged in psychological counselling in an effort to address those issues that contributed to the offending.
36 Finally, in imposing sentence, I must ensure compliance with the totality principle.
37 On Charge 1, you are convicted and sentenced to be imprisoned for five years and three months.
38 On Charge 2, you are convicted and sentenced to be imprisoned for a period of 15 months.
39 On Charge 3, convicted and sentenced to be imprisoned for a period of six months.
40 I order five months of the sentence on Charge 2 and one month of the sentence on Charge 3 be served cumulatively upon each other and cumulatively upon the sentence imposed on Charge 1. This makes a total effective sentence of five years and nine months. I fix a minimum term of three years and three months before you will be eligible for release on parole.
41 Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a total effective term of eight and a half years with a minimum of six years.
42 I make an order pursuant to s.464ZF(2) of the Crimes Act, that you undergo a forensic procedure for the taking of a scraping from your mouth. I make the order because of the seriousness of the offending. The order is not opposed and the granting of the order is in the public interest. If you fail to cooperate with the authorities in the taking of the sample, then the sample taken may be a blood sample, and the authorities may use reasonable force to obtain it.
43 Yes, thank you. Remove the prisoner
44 COUNSEL: As Your Honour pleases.
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