Director of Public Prosecutions v Kelly
[2015] VCC 928
•26 June 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-02446
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENT AARON KELLY |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 June 2015 | |
DATE OF SENTENCE: | ||
CASE MAY BE CITED AS: | DPP v Kelly | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 928 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr K. Doyle | Solicitor for Office of Public Prosecutions |
| For the Accused | Mr G. Chisholm | Robert Stary Lawyers |
HIS HONOUR:
1 Brent Kelly, on 26 June 2015 you pleaded guilty to one charge of causing serious injury intentionally to Clint Sutcliffe, between 7 and 8 March 2012. You also admitted your lengthy criminal record. The maximum penalty for causing serious injury intentionally is 20 years’ imprisonment.
2 Tendered as Exhibit A on the plea was a summary of prosecution opening for plea which was read aloud in court. The facts surrounding your offending can be set out in short compass. In March 2013 the victim met Nichole Keating, and through her, met Lorraine Howard, her daughter Brooke Innes and you. You were in a relationship with Howard. On 7 March 2012, suspecting that the victim had burgled Ms Howard’s house, Brooke Innes and Nichole Keating lured the victim to Ms Howard’s house. On arrival, you set upon the victim punching him about the face. The victim fell onto a couch where you continued to assault him. The victim was handcuffed and tied at his feet by Innes. All present interrogated the victim about the burglary. The victim was repeatedly punched and his pockets were searched. At some time Keating produced a knife and cut the word “dog” into the victim’s forehead. Brooke Innes telephoned her boyfriend, Corey Harrison, and he attended at the house shortly thereafter and immediately assaulted the victim by kicking him to the head. On searching the victim Howard and Keating found ice in his pocket. Keating and Howard used the ice in a bedroom. On becoming aware that Howard and Keating had used the ice you became enraged and kicked the victim to the head, as he lay on the ground with his hands cuffed behind his back and his feet tied together. Howard deposed in her statement that your kick to the victim’s head was hard like you were kicking a football. Subsequently, Innes struck the victim with a meat cleaver above one knee as well as striking him to his other leg. As well the victim suffered severe lacerations to his lower legs. The assault took place over a number of hours.
3 After a period of some time Howard realised that the victim was severely injured. You all put him in the boot of Howard’s car and dumped him on a nature-strip in a street somewhere. You then went to Kelly’s Pub where you had a few drinks and played the Pokies. Howard became concerned that the victim might be seriously injured and so, together you returned to where you had dumped the victim and eventually delivered him in his critically injured state to his parents’ home.
4 The victim suffered a number of lacerations to his lower legs, bruising to his face and head and an acute traumatic subdural haematoma which required an emergency craniotomy and which has left him with an Acquired Brain Injury. The victim spent some days in intensive care and when he was well enough was transferred to the Royal Talbot Acquired Brain Injury Unit for ongoing rehabilitation (see depositions p.229).
5
Tendered as Exhibits C, D and E were Victim Impact Statements from the victim and his parents. During the course of the plea your counsel,
Mr Chisholm, made submissions in respect to those statements, in particular commenting upon the absence in them of any reference to the victim’s
pre-existing injuries. Tendered as Exhibit 3 on the plea were his Honour Judge Barnett’s reasons for sentence in respect to the victim dated 16 July 2004. At Paragraph 16 of the reasons there is a reference to the victim as at 2004 suffering from depression as well as having been diagnosed by a psychologist as suffering from Bipolar Disorder. Part of Exhibit 3 was the criminal record of the victim. The purpose of the tender was not to criticise the victim for his past but to make reference to entries within the criminal record that pre-date the instant offending and refer to the victim having been referred for psychiatric and psychological treatment and notations concerning the victim suffering from depression and Bipolar Disorder prior to your offending against him. Additionally it was noted that the victim had successfully completed a 12 month ARC program subsequent to the injuries inflicted on him by you and your co-offenders, it was submitted that this impacted upon the victim’s statement that he was unable to leave the house and was severely depressed as a direct result of the instant offending.
6 Mr Chisholm correctly conceded that the victim’s acquired brain injury was caused by you and your co-offenders and that your conduct had the capacity to aggravate any pre-existing condition that the victim suffered from at the time of the instant offending.
7 To my mind the failure by the victim and his parents to refer to the victim’s pre-existing psychological difficulties has little impact upon the ultimate result of the exercise of my sentencing discretion, save to say that I do accept that the victim had pre-existing difficulties but the Acquired Brain Injury which he suffered at your hands and the hands of your co-offenders meant its effects on his daily life are real and permanent consequences of your conduct.
8 Tendered as Exhibit 4 was your complete criminal record which demonstrates that you had 175 prior convictions and findings of guilt from four appearances prior to the commission of the instant offending and that your offending was committed whilst you were on parole. This is an aggravating feature of your offending. Since this offending you have appeared before the courts on four occasions and have been convicted in respect of 23 offences. You await further appearance in the Magistrates’ Court in respect to a breach of a suspended sentence as well as further offending which you committed since your last appearance in the Magistrates’ Court on 14 July 2014. It must be noted, however, that you have only two prior convictions for crimes of violence. In summary your prior record reveals you to be a thief and a person who has little regard for the road rules.
9 You were charged in March 2013 and a contested committal was conducted in December of that year. Your matter was listed for trial with your co-offender Keating for December 2014. In November 2014 the matter was resolved when you offered to plead guilty to causing serious injury intentionally. Your matter was listed for plea in February of this year but you failed to appear. You were arrested on warrant and for other matters on 4 May this year and have remained in custody since that time. Accordingly, you have spent 60 days by way of Pre-sentence Detention not including today.
10
Tendered on your behalf as Exhibit 2 was the report of Dr Mathew Barth, psychologist, dated 22 June 2015. When Dr Barth conferred with you on
4 June he found your mental state to be normal. You manifested no symptoms of any primary psychological disorder. You do not currently meet any criteria for any mood disorder, anxiety-related disorder or adjustment disorder. Accordingly you are an appropriate vehicle for the application of the principle of general deterrence.
11 You have a long history of drug abuse having commenced using Cannabis at the age of 15 years. You commenced using Amphetamine and Ecstasy from the age of 16. You have used both of those drugs regularly throughout your adult life. You commenced using Methamphetamine, or ice, at about the age of 21 and this abuse of ice escalated rapidly to daily use.
12 You were born in Warragul and you are the youngest of four children. Your family moved frequently as your parents worked and lived as farm labourers on dairy farms. You described your childhood to Dr Barth as living “like ferals” with your brothers racing motor bikes and cars on the properties on which your parents lived. You described how your older brothers were violent towards you, particularly your oldest brother Brett who you told Dr Barth “beat me and tortured me all the time”. As at the present time you have little or no contact with any members of your family.
13 Your education was seriously disrupted by you having attended several different schools during your childhood. You left school at Year 10 and worked as a cleaner at the MCG. You subsequently obtained an apprenticeship as a panel beater but failed to complete your indenture completing two of the three years required. Since that time when you have not been in prison you have worked as a panel beater, an occupation that it was said of you that you possess some skill.
14 It is to be noted that when you were in prison in 2008 you completed your VCAL concentrating on subjects like concreting, gardening and the like. Whilst awaiting sentence in this matter you have applied for a number of courses and jobs within prison, however, because of your present status within the prison system those are unavailable to you. This will change upon sentence. In the past, whilst in prison you have obtained qualifications including a bobcat licence and a certificate for dealing with dangerous chemicals.
15 At the time of the commission of the instant offence you were living the life of a drug-addicted thief. You were living and associating with like-minded persons. In a drug-affected state suspecting your victim of having burgled your partner’s house you, together with others, brutally assaulted him by hand, foot and instrument. Your victim suffered an Acquired Brain Injury as a result of your offending, which offending is a serious example of offending of its kind.
16 You have pleaded guilty and are entitled to the benefit that flows to you from that plea, particularly the utilitarian benefit. Your plea also exhibits some remorse. You are only 26 years of age and therefore a relatively young man. However you have a lengthy criminal history, your offending was committed whilst on parole and you have committed further criminal offences since the commission of the instant offence. In my view your prospects for rehabilitation are bleak until you rid yourself of your addiction to drugs. Having said that you have limited prior convictions for violence and in respect to that kind of crime, to adopt your counsel’s submissions, your prospects in this respect are “better than guarded”.
17 Your co-offender Ms Howard was sentenced by me to two-and-a-half years’ imprisonment with a non-parole period of 18 months’ imprisonment. Ms Howard had during the course of her plea undertaken to give evidence in respect of you and your co-offender Keating at your then forthcoming trial, and accordingly she received a considerable reduction in the sentence that she might otherwise have received because of that undertaking.
18 Mr Chisholm submitted that an immediate term of imprisonment was warranted in your case and submitted that a longer parole period should be set in your case. This prompted a discussion concerning the appropriateness of an immediate term of imprisonment combined with a Community Corrections Order. Ultimately, the gravity of your offending, the need to deter you and others from this kind of offending when combined with your limited prospects of rehabilitation and the issue of parity with your co-offender Howard militate against such an order.
19 Crimes of violence are all too prevalent in our community. By this sentence I must punish you and I must publicly denounce your conduct. General and specific deterrence are relevant sentencing factors in arriving at a just sentence in your circumstances. However, I am of the view that specific deterrence should play a lesser role than might otherwise have been the case because of your lack of prior convictions for offences of violence.
20 Taking into account the circumstances of the offence and their effects, with your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending I sentence you to four years’ imprisonment and I fix a period of two years and six months’ imprisonment before you will become eligible for parole
21 I declare that you have spent 60 days by way of Pre-sentence Detention, not including today.
22 Pursuant to s.6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty I would have sentenced you to seven years’ imprisonment with a non-parole period of five years’ imprisonment.
23 HIS HONOUR: You may be seated. Are there any matters that need to be dealt with?
24 COUNSEL: No, Your Honour.
25 MR CHISHOLM: No, Your Honour.
26 (Prisoner removed.)
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