Director of Public Prosecutions v Kelly

[2024] VCC 1763

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-01838

CR 23-01384

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEAN KELLY

GUY GRECH

---

JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2024,17 April 2024, 18 April, 2024, 19 April 2024, 22 April, 23 April 2024 & 14 October 2024
DATE OF SENTENCE:	1 November 2024
CASE MAY BE CITED AS:	DPP v Kelly
MEDIUM NEUTRAL CITATION:	[2024] VCC 1763

REASONS FOR SENTENCE

---

Subject:   CRIMINAL LAW

Catchwords:  Charges of home invasion; theft; intentionally cause injury; theft of a motor car and common assault.

Legislation Cited:

Cases Cited:

Sentences:Kelly Total effective sentence of eight years and two months with a non- parole period of six years.  Grech Total effective sentence of eight years and two months with a new non-parole period of six years and six months.

-

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Fallar	Office of Public Prosecutions
For Accused Kelly	Mr N. Rolfe	Rolfe Criminal Law
For Accused Grech	Mr D. Sala	Haines & Polites

HER HONOUR:

1Sean Kelly, on 23 April 2024, a jury found you guilty of the following offences – home invasion; theft; intentionally cause injury; theft of a motor car and common assault.  

2Guy Grech, you pleaded guilty on 16 April 2024 to the following charges – home invasion; theft; theft of a motor vehicle and common assault.

3In respect of that plea, the prosecution relied on the summary of prosecution opening for plea dated 4 May 2024. (Exhibit GA).   The maximum penalties for these offences are:

(a)Home Invasion – 25 years' imprisonment.  It is a Category 2 offence under the Sentencing Act 1991 and I am required to impose a custodial sentence. Neither party suggested otherwise.

(b)Theft – 10 years' imprisonment.

(c)Theft of a motor vehicle – 10 years' imprisonment with licences can be suspended or cancelled.

(d)Intentionally cause injury in respect of you, Mr Kelly – 10 years' imprisonment.

(e)Common assault (a rolled-up charge) – five years' imprisonment.

4You both committed these offences during an incident at the home of Mr Welsh in Thornhill Park in the morning on Friday 23 September 2022. 

5At about 7 o'clock in the morning, Mr Welsh was home alone and awoken by his dog, realising there were two males in his house.  It was later discovered that they had gained access through the rear of the house.  The males pulled him out of bed, forced him to the ground and told him not to look up or else he would get hit.

6You were the two males.  Your movements were captured on the internal CCTV footage that was operational.  A description was provided of each of you by
Mr Welsh.  You, Grech, had an axe, with a metal axe head and a wooden shaft and you, Kelly, had a piece of timber.

7In respect of the common assault which as I indicated a rolled-up charge, you both demanded the whereabouts of his valuables.  Each time he lifted his head, he was kicked to the head and threatened.  Throughout the incident, which was for about an hour, Mr Welsh described being repeatedly kicked, punched and assaulted. 

8At one stage when Kelly had left the room, you, Grech, straddled Mr Welsh from behind.  He could feel your penis against his bottom, and you leaned towards him and threatened to 'fuck him'.   At that time you, Kelly, walked in and told you, Grech, to get off him.  Once you, Grech, had stood up, you kicked
Mr Welsh again to the back of the head.  

9At one stage Mr Welsh required the toilet.  When he crawled out of the bathroom, you, Kelly, threw a clothes iron at him, initially missing, but then threw a second or different iron which hit him on the head.   It caused a laceration to his head, and he blacked out momentarily.   I note this conduct is not part of the factual basis of the assault for which you, Grech, are to be sentenced and it relates to the intentionally cause injury charge for you, Mr Kelly.

10As indicated, you both assaulted Mr Welsh repeatedly and also stole a significant quantity of jewellery, diamonds, watches, designer clothing, New York Yankees baseball cap collection and his safe.  You both loaded these items into Mr Welsh's car which was in his garage then drove off in his car.  The goods were valued at over $60,000 and the car approximately $17,500.

11Mr Welsh spent a night in hospital having suffered a 3-centimetre laceration to the right frontal area, a round haematoma to the parietal aspect of his head, tenderness and bruising to the right side of his body.

12Police were ultimately able to connect both of you to this incident, with investigations revealing:

13Prior to the incident, Mr Welsh had had two housemates Jayden Hope and Matthew Shields.  They were both aware of the existence of a safe which kept valuables including diamonds at Mr Welsh's home.  They both had a falling out with Mr Welsh and had left the property, but you, Grech, knew these individuals.

14A few days before the incident in an unrelated matter, police had carried out a welfare check on you, Grech, when you were in your Ute with a registration IRK 1O2.

15It was reported to police by a real estate agent who was responsible for the property next to your home, Grech, that a car with altered number plates was parked on the property.  This was Mr Welsh's car and when enquiries were made, you, Grech, said you would move the car, and provided your details to that representative of the estate agency.

16Police obtained your phone, Grech, in respect of an unrelated matter which revealed:

a)Text messages with 'Jayden';

b)Analysis that recorded that this phone had travelled in the relevant vicinity, at the relevant times, on the day of the incident, including attendance at a 7-Eleven in the ute.   From 6.32 am to 8.17 am, the phone remained in the vicinity of Mr Welsh's address, during which the home invasion occurred;

c)The phone was used to conduct an online VicRoads registration check. Police discovered two screenshots of a VicRoads registration check on 1AI 4XG and 1AI 1XG.   Mr Welsh's registration was the latter.  

d)Between 23 and 26 September 2022, internet searches conducted on the phone were linked to the stolen items and the vehicle;

e)Texts were sent from that phone containing several photos of the stolen jewellery, including a ring on your finger, Grech, that also depicted your distinctive tattoos;

f)A photo was sent from the phone to an associate depicting Mr Welsh's stolen Kia Sportage.

17A search of your car, Grech, on 5 October 2022 in respect of unrelated matters, had police locating and seizing your mobile phone and four jewellery boxes with loose diamonds, several keys including a Kia car key and garage remote control related to Mr Welsh. 

18Police also monitored your calls, Grech, when you were on remand, and you called Deborah Grech and discussed a 'safe' and requested her to destroy the contents inside.  You also had discussions after you were interviewed with his partner, Shaylee Scott.

19In respect of you, Kelly, the jury were satisfied that you were with Grech and depicted in the CCTV footage from 7-Eleven, in the area near Mr Welsh's home prior to you both going inside, and inside the house.

20When interviewed by police in January 2023 you, Grech, denied any knowledge of the home invasion, connection to the previous residents or to Mr Kelly.  You denied knowledge of any of the stolen goods, including Mr Welsh's car, and denied it was you who was depicted in the various pieces of CCTV footage.  You, Kelly, were arrested and interviewed on 10 February 2023.

21I was provided with a victim impact statement from Mr Welsh (Exhibit 1).  I take into account all of the admissible material contained therein.   It is clear that this offending has had a significant impact on him with long lasting effect.  He describes his experiences since this offending as absolutely distressing, terrifying, isolating and that he is filled with constant feelings of impending doom.  He describes the change in his personality, from being outgoing and gregarious to now struggling to form trusting relationships and being paranoid about others.  As well as his direct physical injuries, he has been diagnosed with PTSD, anxiety disorder, and suffers depression and panic attacks for which he has sought professional help and treatment.   He has felt the necessity to move away from the house where the offending occurred and to change his employment.   He concludes, 'My life has been turned upside down … I am still suffering daily … they have destroyed my personality, life, confidence and trust in people'.

22I turn then to the personal circumstances of each of you

In addition to written submissions from your counsel, I was provided with the following:

23Exhibit 1 – Neuropsychological report from Li Chin dated 18 July 2024;

24Exhibit 2 – Psychological report from Ms Gina Cidoni dated 5 September 2024;

25Exhibit 3 – Bundle of certificates from courses and programs obtained whilst in custody from Uniting ReGen and Atlas.

26You were born and raised by your mother in Footscray with your sister.  Your father was in and out of your lives and I understand he is currently in custody.  You were exposed to violence and neglect growing up, and often went to your grandmother's home for safety.  Your instability continued into your teenage years, with you spending time living with different relations.  This instability also led you to resorting to criminal activities at a very young age.  You experienced significant and disturbing abuse in youth detention and resorted to drug use as a coping mechanism for the damage and pain you had experienced.  You moved away from home ultimately when you were aged 23.

27You were in a long-term relationship with Hayley, the mother of your child Cruise, now aged 12 years.  She is now responsible for your child's care, though you have had regular communication with them. 

28Your relationship with Hayley was on and off, interrupted by your drug use and criminal activities, resulting in you spending time in prison.  You were together when you were released from prison in 2019.   I understand you have now been separated from her for about two years.  I was informed that this separation caused you to again relapse into drug use and left you experiencing periods of homelessness.

29Prior to being remanded for these matters on 12 February 2023 you were avoiding police detection.   Since you have been in custody, I understand you are currently in protection whilst your father is in mainstream prison. 

30Both your mother, sister and Hayley remain supportive of you, with Hayley visiting you.  Additionally, you have the support of other friends and accommodation available to you on your ultimate release.

31Unsurprisingly, your education and schooling were interrupted and you left formal school at the end of Year 7.   You had various jobs.  When you were 17 you worked as a plasterer for about nine months.  This ceased when you were detained in Youth Justice.   You have also had periods when you were in receipt of a disability pension due to mental health issues.

32You have had significant time in and out of detention and custody, for dishonesty, driving, breaching family violence orders and other serious violent offences.  These have included for aggravated burglary person present, recklessly cause serious injury where you were sentenced in this court on
29 October 2010 to three years' imprisonment with a non-parole period of one year.   More recently you were sentenced in this court in February 2018 to a period of two years three months' imprisonment with a non-parole period of
18 months for three counts of making a threat to kill and persistent breach of a family violence order.  Your prior criminal history is clearly relevant to specific deterrence. 

33Between the ages of 17-25 you regularly smoked cannabis, though stopped using it in 2015.  You started using methamphetamine when you were aged 17 and continued to use it for a couple of years.  You also reported intermittent use of other illicit substances in your late teenage years.   As referred to above, you recommenced methamphetamine use when your relationship broke down, with you using right up until the day of arrest.  You also, during this period, developed a significant gambling problem. 

34Ms Cidoni opined that you presented with a complex psychological profile and linked that to your adverse childhood experiences and trauma.  She indicated that your personality traits indicated low conscientiousness and impulsivity, both of which were relevant to your addictive and risky behaviours.  Her assessment and relevant testing revealed you suffering post-traumatic stress disorder, ADHD, borderline personality disorder, and substance use disorders.   Clearly your substance abuse affects your existing conditions.

35She noted:

His substance use has a detrimental impact on his existing conditions where it clouds judgement, making impulse control even poorer and potentially worsening the symptoms of ADHD, PTSD, and BPD.  As for the chronology, it is challenging to say definitively whether the substance use preceded or followed the diagnoses. A cyclic relationship exists, where drug use exacerbates symptoms, which in turn may lead to increased substance use as a maladaptive coping mechanism.

Ms Cidoni recommended a neuropsychological assessment to clarify your current cognitive functioning and to investigate the existence or otherwise of an intellectual disability. 

36Ms Li opined that results from the current assessment revealed you having an IQ to be in the 'Below Average' range with a score of 74.

37Your specific strengths and weaknesses are set out in her report (see p11).  She concluded that overall your neuropsychological profile was not consistent with intellectual disability.   Your cognitive profile was more consistent with the attentional difficulties you experienced as a consequence of your ADHD.  She noted that you reportedly had not been treated for that since you were young, that from a cognitive perspective your attentional and impulse difficulties related to your ADHD would be very likely to have been exacerbated by your substance use at the time of your offending.

38I accept, and the prosecution did not dispute, that your current mental health issues and level of intellectual functioning will make custody more difficult for you than others without those issues. 

39As to your rehabilitation prospects, you have shown you can have periods in the community remaining out of trouble, despite your extensive criminal history.  In particular, when you are in a stable relationship and gainfully employed, you can remain offence free.   I note that you have been using your time in custody productively engaging in relevant courses.  I was informed that you have a responsible position as a mentor to other prisoners in your unit, a responsibility that would not have been given to you if authorities suspected that you were using drugs.

40Clearly your drug use needs to cease.  The impact that has on your conduct in combination with your level of functioning, provides fertile ground for you to offend and be involved in serious risk-taking behaviour.  You will require structured assistance when you return to the community. 

41Ms Cidoni opined that given her diagnosis, substance abuse and extensive criminal history, that you are a high risk of violent recidivism. 

42Given your prior history, drug use and the serious nature of this offending, I regard your rehabilitation prospects as poor though not hopeless.  Protection of the community is also a relevant sentencing consideration.

43I turn then to your personal circumstances, Mr Grech.   In addition to the written submissions provided by your counsel, I received a report from Leanne Matthews, neuropsychologist, dated 23 September 2024.   I was also provided with the sentencing remarks of Judge Parrish dated 12 July 2019 and Judge Chettle dated 16 February 2024, both of which set out extensively your personal circumstances and your prior criminal history.

44You are currently aged 35.  You have 2 half-siblings and your parents separated when you were a baby.  Your father passed away when you were seven.  Your mother re-partnered, though you have indicated that you have never had a close relationship with your stepfather.  You found school very difficult and left mid-way through Year 9.

45You have three children each from different relationships, aged 15,14 and 2.  You have had little or no contact with the youngest two for an extended period. 

46You have worked a variety of jobs including plastering, roof tiling, as a mechanic and at around the time of this offending, a handy man. 

47You also have a significant prior history.  Your offending is principally dishonesty and driving related, though in more recent times, it has involved firearms.   In November 2015 you were sentenced to 18 months' imprisonment for firearms and driving offences.  Prior to that, you had been placed on a number of community orders or fined.  In 2017 you were convicted of drug offences and sentenced to 12 months' imprisonment.  In July 2019 you were sentenced by Judge Parrish to 3 years 6 months' imprisonment with a non-parole period of
two years for robbery, drive whilst disqualified and theft.  His Honour described that offending as objectively serious involving a soft target, a degree of
pre-meditation and use of a disguise, the circumstances being frightening to the victim - see paragraph 36.

48Of course you are not to be punished for your prior matters, however they are clearly relevant to specific deterrence and protection of the community.

49You also have a subsequent matter.  You were before Judge Chettle on
16 February 2024 and sentenced to three years nine months' imprisonment with a non-parole period of two years six months for possession of a trafficable quantity of firearms and three counts of handling stolen goods and possession of a drug of dependence.    That offending occurred in October 2022 and was described by His Honour as serious criminal activity.  You are currently undergoing that sentence and it will be necessary for me to set a new
non-parole period. 

50You first started using cannabis when you were around 15, though you ceased using it about eight years ago.   At 21 you commenced using ice, and clearly this drug is your main vice, with your usage directly connected to this and your prior offending.   I was informed that on your release from custody and on parole as a consequence of Judge Parrish's sentence, you were able to be abstinent from illicit drugs and were working as a handyman.   However, once your parole was complete, and with the additional stressors regarding work with COVID, you reverted back to ice use, resulting in your relationship breakdown and you living a criminal lifestyle.

51Your counsel highlighted Ms Matthews' opinion that based on her assessment and tests, that your global cognitive function fell in the borderline range with an IQ of 74. 

52Various aspects of that assessment are included in her report (see paragraphs 39-42)

53She concludes that you demonstrated clearly preserved visual cognitive skills including reasoning and planning/organisation of visual materials. That you demonstrated concreteness of thought, poor capacity to think verbally.  You had poor attention, which secondarily impacted on your capacity to learn and retain information.

54You have limited capacity to engage in consequential thinking, understand cause-and-effect relationships and to learn from your mistakes. Furthermore, she regarded your capacity to think clearly as being expected to decline with changes in your state of mental health, especially when substance affected.

55That you have long standing mood, personality, drug-related problems, and a propensity to associate with negative peers.  She believed they were key factors to your cycle of antisocial behaviours or criminal offending in recent years.

56Given her opinion regarding your low IQ, it was submitted that general deterrence should be moderated given your reduced level of intellectual functioning.  The prosecution did not dispute, and I accept that submission. 

57You are entitled to some discount to your sentence as a consequence of your plea of guilty.  This is so even though it was at a late stage in the proceedings.  Your plea has helped to facilitate the course of justice and has a utilitarian benefit.   Your plea is also indicative of you taking some responsibility for your actions. 

58You also have been able to demonstrate that you are capable of periods of abstinence from drugs, that such can happen if you are in a structured environment such as in prison or on parole.   Given your IQ, you clearly require structure and assistance in the community.  It is essential that you remain abstinent and engage in treatment for your drug use, as it would appear to be the principal feature in your offending.   Given your prior matters, I regard your rehabilitation prospects as poor, a similar finding of Judge Chettle.  Community protection is also important. 

59As to the objective seriousness of this offending, the impact of the offending has been significant, with physical and psychological damage to Mr Welsh.  This was indeed a terrifying ordeal that you both inflicted upon him.

60The maximum penalty and categorisation of home invasion as a Schedule 2 offence is reflective of the seriousness with which Parliament views this offence.

61Other aggravating features included that this offending occurred in company.  There were two of you.

62You remained in the house for an extended period, for about an hour.

63Your offending occurred in daylight, though the early hours of the morning.  It was a brazen attack

64You utilised weapons and objects to threaten and assault Mr Welsh.

65You subjected Mr Welsh to some degrading behaviour including his desire to relieve himself.

66Mr Welsh was specifically targeted given the information that you had, Grech, regarding the valuables that were in the house.

67You used masks to conceal your identity and it made the experience more frightening.   Your offending was clearly pre-meditated and involved a degree of planning.

68The items stolen were of significant financial and personal value.

69There was damage to the house and the property.

70You were motivated by financial reward for the goods.

71This was clearly a very serious example of home invasion

72As to parity, neither counsel submitted that issues of parity were such as to warrant significantly different sentences.  You both have significant criminal histories, though arguably yours, Grech, is more serious.   Further, it was you, Grech, who had the information regarding the house and Mr Welsh from your contacts.   In respect of you, Kelly, it was conceded that you played a lesser role in the planning, you have an additional offence arising from this incident and you do not have the benefit of a discount for the plea.   

73A watching of the CCTV material inside the house reflects the seriousness and viciousness in relation to this offending.  It was deplorable in terms of its brutality and impact.

74As would be apparent from the factual summary and objective seriousness of this offending, general deterrence, just punishment, denunciation, are all important sentencing considerations.  As previously noted, protection of the community has a significant role to play.  Given both of your criminal histories, specific deterrence is also a considerable factor.    These factors must be balanced with matters personal to each of you.  I have also considered principles of totality.  

75Both counsel properly conceded the only appropriate sentence was a head sentence with a non-parole period.

76Mr Kelly, could you please stand. 

77In respect of Charge 1, home invasion, you are convicted and sentenced to a term of imprisonment of seven years and 8 months. 

78In respect of Charge 2, theft, you are convicted and sentenced to a term of imprisonment of 12 months. 

79In respect of Charge 3, intentionally cause injury, you are convicted and sentenced to a term of imprisonment of 12 months. 

80In respect of Charge 4, theft of a motor vehicle, you are convicted and sentenced to a term of imprisonment of 18 months and all licences will be cancelled for a period of three years. 

81In respect of charge 5, assault, you are convicted and sentenced to a term of imprisonment of six months.

82Four months of the sentence imposed on Charge 3 and two months of the sentence imposed on Charge 5 will be cumulative, giving a total effective sentence of eight years and two months, with a non-parole period of six years.

83Pre-sentence detention will be declared at 630 days. 

84Thank you, if you could sit.

85Mr Grech, in respect of Charge 1, home invasion, you are convicted and sentenced to a term of imprisonment of eight years.

86In respect of Charge 2, theft, you are convicted and sentenced to a term of imprisonment of 12 months.

87In respect of Charge 3, theft of a motor vehicle, you are convicted and sentenced to a term of 18 months.

88In respect of Charge 4, assault, you are convicted and sentenced to a term of imprisonment of six months.

89Two months of the sentence imposed on Charge 4 will be cumulative on the sentence imposed on charge 1, giving a total effective sentence of eight years and two months.

90Given you are currently undergoing a sentence, I am required to impose a new non-parole period which will be a period of six years and six months.

91Pursuant to s6AAA of the Sentencing Act, if you had not pleaded guilty to these matters, I would have imposed a term of imprisonment of 10 years.  Your licence in respect of Charge 3 will also be cancelled for a period of three years.

92Is there anything else?  You can sit down, thank you.

93MS FALLAR:  As the Court pleases.  Your Honour, confirming the forfeiture order was already made on the last - - -

94HER HONOUR:  Yes.  Okay, thank you.

- - -