Director of Public Prosecutions v Kelly

[2012] VCC 1343

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

AT MILDURA

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRADLEY PHILLIP KELLY

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Mildura
DATE OF HEARING:	12 September 2012
DATE OF SENTENCE:	12 September 2012
CASE MAY BE CITED AS:	DPP v Kelly
MEDIUM NEUTRAL CITATION:	[2019] VCC 1343

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr C. Larkins	Hilton-Wood Solicitors

HIS HONOUR:

1 Bradley Phillip Kelly, you have pleaded guilty to one charge of arson contrary to Section 197(1) of the Crimes Act 1958.  The maximum penalty for that charge is 15 years' imprisonment. 

2       The estimated value of the damage caused by your offending in this instance is less than $100,000 and therefore had the matter been dealt with on this basis initially it may have been heard in the Magistrates Court, where the maximum penalty available to the magistrate would have been two years' imprisonment.  I must, however, sentence you by reference to the maximum penalty available to me.  But the fact that this offence may have been dealt with in the Magistrates Court is a matter that I have taken into account in your favour, as it informs the relative seriousness of the offence now before the court.  I have characterised your plea of guilty as an early plea in those circumstances and I have taken it into account in your favour in mitigation of sentence. 

3       You have admitted four prior court appearances for offences including one charge of destroying or damaging property for which you were placed on a good behaviour bond in the sum of $50 in August 2000 in the Children's Court at Mildura.  Apart from that matter, your prior convictions are of no significance for sentencing purposes in this instance. 

4       A summary of prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows –

5       In April 2008 you were in a de facto relationship with Kayla Clark.  The two of you had two children.  The relationship ended in October 2008 and Ms Clark moved into a Victorian Government Office of Housing home situated at 6 Tate Avenue in Mildura.  She was living there with your son who was then aged one year. 

6       On the morning of 9 November 2008 you attended at those premises and determined that Ms Clark and your son were not there.  You telephoned her and she informed you that she was staying with her mother.  Your counsel has informed me that at this time you were under the influence of alcohol and amphetamine.  You demanded that Clark give you the keys to the premise so that you could stay there but she refused. 

7       Later that morning you broke into the premises, located three garbage bags and a sports bag owned by Clark and put a number of items in them.  You then set fire to three separate areas in the house, including one of the children's bedrooms, Ms Clark's bedroom and also an area in the lounge room.  The fire set in the lounge room took hold and subsequently caused extensive damage to the property which, as I have already said, was valued in the vicinity of $100,000.  After setting fire to the premises you took items of clothing and a child's couch to Ms Clark's grandmother's home in 14th Street, Mildura and left them there. 

8       On 20 November 2008 you were located in premises situated in South Australia.  You were arrested and interviewed at the Mildura police station on 21 November 2008 and made a "no comment" record of interview.  You were thereafter released on bail.

9       In December 2011 the charges of arson were listed for trial before this court and you then failed to appear.  His Honour Judge Bourke issued a warrant which was executed on 15 May 2012 and you have been remanded in custody since that time. 

10      It is clear from the summary of the offending that I have referred to that it may properly be described as serious offending, apparently motivated by some desire to inflict not personal harm but harm to Ms Clark by damaging her premises.  You set fire to them whilst in a drug and alcohol fuelled state.  Any sentence that I impose must be calculated to deter you and others from behaving in this way whilst experiencing the distress resulting from the breakdown of a relationship.  Furthermore, any sentence that I impose must be calculated to protect persons such as Ms Clark from conduct of this nature and you must be punished for what you have done.

11      Your offending occurred almost four years ago and it is clear that the delay of at least three years is of no fault of yours.  It was not until December 2011 that your trial was listed for hearing in this court.  You have not re-offended in that time, although your counsel openly informed me that during 2011 you were using drugs and alcohol to the point where your life had become directionless and you were not working.  Nevertheless, despite that, you did not offend and I have taken that fact into account in concluding that your prospects for rehabilitation may properly be described as reasonable. 

12      You were born on 19 July 1983 and you are now aged 29 years.  Your counsel informs me that you have a good understanding of Aboriginal culture and history and you are closely involved in those matters.  He described you as a person best suited to living in a rural or bush community and best suited to working in that environment.  He informed me that when you were residing in an urban or city setting that there was a risk that you would become impaired by alcohol and drug use.  I accept that you have a good work history and that you come from a stable and supportive family.  Upon your release from prison it is proposed that you reside with your father in Dareton in New South Wales, a short distance from Mildura, and you will be engaged with him in goat herding in rural New South Wales.  You are now in a stable relationship and you have a young child and that fact also augurs well for your future prospects for rehabilitation. 

13      As I have observed you have a limited criminal history and you are still a relatively young man.  Accordingly, any sentence that I impose must in part be designed to assist your future rehabilitation.  In my opinion, you will benefit from ongoing supervision on parole upon your release from prison.  I do not accept that in the circumstances of this case the imposition of a suspended sentence or a partly suspended sentence is an appropriate proportionate penalty because as I have said, in my view, you will benefit from supervision on parole.  

14      In the result the sentence of the court is as follows –

15      On the charge of arson, you are convicted and sentenced to be imprisoned for 18 months.  I order that you serve six months' imprisonment before becoming eligible for release on parole.  I declare that you have served 142 days by way of pre-sentence detention, not including today.  But for your plea of guilty I would have sentenced you to two years and six months' imprisonment and fixed a non-parole period of 15 months.

16      I have made the forensic sample order sought by the prosecution and I need to inform you, Mr Kelly, that the authorities can use reasonable force to obtain that sample from you, although in all probability it will simply be a scraping from your mouth.  That will involve you serving another 38 days approximately, Mr Kelly, before becoming eligible for release on parole.

17      COUNSEL:  If Your Honour pleases

18      HIS HONOUR:   Is there anything further required?

19      MR O'DOHERTY:  No, Your Honour.

20      HIS HONOUR:  Thank you, I will sign the orders. 

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