Director of Public Prosecutions v Kelly

[2024] VCC 1055

CIN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-21-00991
 CR-22-00603

DIRECTOR OF PUBLIC PROSECUTIONS

v

MITCHELL KELLY
TIMOTHY FIELDEN

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:	1 July 2024
DATE OF SENTENCE:	15 July 2024 & 16 July 2024
CASE MAY BE CITED AS:	DPP v Kelly
MEDIUM NEUTRAL CITATION:	[2024] VCC 1055

REASONS FOR SENTENCE
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Subject:Criminal

Catchwords:              Criminal trial - rape – sexual assault - assistance and encouragement - unconscious - opportunistic offending - incapable of consenting - unreasonable belief in free agreement - no capacity to consent - incapacitated by drugs - disregard of the victim's rights - standard sentence - substantial delay - no remorse or insight.

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:DPP v Mokhtari [2020] VSCA 16; Bugmy v The Queen [2013] HCA 27; R v Mason [2001] VSCA 62.

Sentence:                  Mitchell KELLY: four years and two months' imprisonment and a non-parole period of two years and eight months.

Timothy FIELDEN: four years and two months’ imprisonment and a non-parole period of two years and 10 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Y. Hardjadibrata	Office of Public Prosecutions
For the Accused Kelly For the Accused Fielden	Mr G. Chisholm Mr J. Lavery	Stephen Patterson Lawyers Kurnai Legal Practice

HIS HONOUR:

1Mitchell Kelly, on 30 April 2024, you were found guilty by a jury of Charge 1 of rape and a further charge of sexual assault, which went to the jury as an alternative to Charge 3 of rape, which I had found you not guilty upholding the defence no case submission.  I also entered a verdict of not guilty in respect of Charge 4 on a no case submission.   The jury in your case was unable to reach a verdict in relation to Charge 2, which has been subsequently discontinued by the prosecution. 

2Timothy Fielden, you were also found guilty of Charge 1 of rape by the jury and the alternative to Charge 3 of sexual assault.  I entered a verdict of not guilty to Charge 3 and Charge 5 after no case submissions.  The jury was not able to reach a verdict in relation to Charges 2 and 4.   The prosecution discontinued the proceeding in respect of both of those charges.

3The offending in this case took place in January 2021. At the time of the offending, the victim was 26 years old. You, Mr Fielden, were 31 years old and you, Mr Kelly, were 23 years old.

4The victim gave evidence at the trial that she had met you, Mr Fielden, previously in 2020.   At that time, she also had contact with you over Facebook Messenger. On Sunday 3 January 2021, she contacted you via Facebook Messenger, between 7 and 8 pm.  She wanted to obtain GHB from you.  She drove to your house in Drouin.  You introduced her to your father.  You went into your bedroom and took some GHB with her.   After an hour or so, the two of you drove to Pakenham.  You also went to Officer and then back to Drouin.

5In the car, you had engaged in sexual activity.  It seems you then went out again, heading to Warragul and stopped at an industrial estate in Warragul and had sexual intercourse on the bonnet of the victim’s car.  This episode was captured on CCTV footage which was played during the trial.

6The two of you headed into Warragul to meet up with your cousin, Mr Fielden and it was in Warragul that you saw Mr Kelly walking along the street and you, Mr Fielden, stopped the car and picked him up.  You and Mr Kelly were friends.  The victim had never met Mr Kelly before. 

7The three of you then went back to Mr Fielden’s place.  It was nearly morning.

8The victim gave evidence that she was tired and wanted to go home.  She gave evidence that she lay down on your bed, Mr Fielden, and started nodding off for about five minutes.  The two of you left the room for some time before returning.

9The victim then asked for a charge of GHB and took 2 mils.

10You, Mr Fielden, stated touching the victim’s breasts and her vagina.  She asked for more GHB and took another mil of GHB.

11As best as I can tell, the two of you also took GHB and an ice pipe was produced and you all smoked ice, including the victim.

12The drug taking and the sexual activity were recorded on your mobile phone,
Mr Fielden.  The time of the first video which was played to the jury is just after
7 am in the morning.  In total, there were nine videos which show the activity in the bedroom that morning.  Eight of them were taken on your phone, Mr Fielden, and they ran for a little over 40 minutes.  The ninth video was taken on the victims' phone and ran for a couple of minutes.   

13It is apparent from the footage that the victim knew you were recording what was taking place on your phone, Mr Fielden, and she had no objection to that.  The victim indicated to you, Mr Fielden, she was happy to have sex with you, but not with Mr Kelly in a ‘threesome’.

14In the prosecution case, the videos shown showed sexual activity between you, Mr Fielden, and the victim, and as events progressed, between Mr Kelly and the victim, as well as showing the drug-taking that took place.

15As I said, the ninth video was taken on the victims’ phone.  The prosecution case at trial was that by the time this video commenced the victim was no longer capable of free agreement because of the GHB she had taken since she met up with you, Mr Fielden, including the GHB she had taken in the bedroom.  The prosecution argued to the jury that both of you had no reasonable belief that the victim had the capacity to consent.

16It is clear from the videos that sexual activity with consent took place between both you, Mr Fielden, and you, Mr Kelly, prior to the commencement of the ninth video.

17You, Mr Fielden, are shown digitally penetrating the victim, touching her breasts and engaging in consensual sexual intercourse with her throughout the eight videos which run for around 40 minutes.   Mostly you, Mr Kelly, lay on the bed, but you also participated in sexual activity including digital and oral penetration.

18Approximately halfway through the eighth video, the two of you began asking the victim for the PIN number for her phone.  It was mainly you, Mr Fielden, making this request.   You wanted to use your phone to play music through the speaker in your room, but you wanted to continue filming the sexual activity that was taking place and therefore you needed her phone for that purpose.   The victim was asked over 20 times for her PIN number and she struggled to respond.   By the end of video eight, she had not revealed her PIN number, but she must have done so in the short period between the end of video eight and the commencement of video nine, because video nine was filmed on her phone.

19By the end of video eight, you, Mr Kelly, can be seen penetrating her vagina with your penis.  Briefly in the trial, it seemed the prosecutor was raising this as the commencement of the rape, but he resiled from that argument because this was opened as rape commencing at the start of video nine.

20The victim said in her evidence that the last thing she remembers is performing oral sex on you, Mr Kelly.  You had been putting your penis near her face.  This can be seen on the video footage.

21The prosecution in the end argued to the jury that video eight was evidence of her deteriorating state of consciousness and that it was very clear by the beginning of video nine that she had no capacity to consent and therefore the rape offence commenced at that time.

22The rape offence, charge 1, relates to penile/vaginal penetration shown in the first 30 seconds of video nine.  You, Mr Kelly, were the principal offender and you,
Mr Fielden, were convicted based on assisting and encouraging or directing
Mr Kelly's penetration by your actions.  The prosecution case was that by the words you uttered, your actions in filming the sexual activity and playing music to drown out sounds you assisted or encouraged.

23The sexual assault offence of which you have both been convicted also derives from video nine.   At approximately 1 minute 37 seconds you, Mr Kelly, can be seen with your finger in the vicinity of the victim’s vagina.   This was charged as a digital rape.  I entered a verdict of not guilty on the basis that the video was not capable of proving penetration to the criminal standard.   The jury convicted you both of the alternative offence of sexual assault based on you, Mr Kelly, touching the victim’s vagina and you, Mr Fielden, assisting or encouraging that conduct.

24The victim  eventually fell asleep and woke up the next morning.  You and Mr Kelly had gone out.  When I say, 'fell asleep', perhaps rendered unconscious by the drugs she had taken is a better description.

25When she looked at her phone, she saw the video of Mr Kelly penetrating her.  She had no memory of anything like that happening. 

26When you, Mr Fielden, returned later that day, the victim asked you why you had had sex with her while she was unconscious.  You looked at the video on the phone and said ‘That’s not me.  That's Mitch'.  The victim asked 'What?  I was fucked by Mitch?'  You told her that she was going off when that was taking place, which was not true based on the clear evidence in video nine.  When the victim told you that ‘the video was fucked', you snatched the phone out of her hands and deleted the video.

27I accept the evidence the victim did not intend to engage in penile/vaginal sexual intercourse with you, Mr Kelly, and had no memory of it and she was therefore shocked and disturbed by what she saw on the video.

28She was able to recover the deleted video and she went to police and reported the matter.

29You were both interviewed in January 2021.  You, Mr Fielden were interviewed twice.  You both said in effect that that the victim had consented.  There was a lot of detail given in the records of interview, some of which plainly did not tally with what is shown in the videos.

Victim impact statements

30The victim, made a victim impact statement that was read by the prosecutor on the plea.   She says that since the offending she has experienced feelings of isolation, anger and guilt.  She knows the offending was not her fault, but nonetheless feels ashamed.  She has experienced low self-esteem and has felt physically sick about the prospect of having sex with her partner.  She has also felt depressed.

31Due to an increase in her anxiety, she has been prescribed new medication.  She says she rarely socialises anymore.  She has been experiencing OCD and panic attacks. The offending she says has also affected her eating habits, and she has lost weight.   She has not been exercising because she gets anxious about men seeing her.

32She feels paranoid about what people think of her, including her parents.  She says she has withdrawn from her life, and is constantly in her bedroom, and finds it hard to motivate herself.  She does not want to be around people like she used to and the idea of being with men or 'another guy' makes her feel sick.

33The victim’s mother also made a victim impact statement.  She says she has suffered helplessness and despair over what her daughter has endured.  She describes her daughter as having been vulnerable and struggling with her mental health.  She hopes her daughter will receive closure from the court hearing and be able to move forward with her recovery and her life.

34It is apparent from the victim impact statements in this matter that the effects of your offending on the victim and her mother have been substantial and are ongoing.  This is a significant factor in informing just punishment for the offending.

Gravity

35The seriousness of the offence of rape is reflected by the maximum penalty of
25 years' imprisonment and the standard sentence of 10 years' imprisonment.   Further, rape is a category 1 offence, which means I must impose a sentence of imprisonment on an adult offender.

36In the case of Mason v The Queen, the Court of Appeal said this about the crime of rape:

The crime of rape is an intensely personal crime which, for sentencing purposes, cannot be divorced from its effects on the victim.  But the effects include not only those which flow from the physical invasion of the victim's person and security, but also those which flow from the violation of the more intangible intellectual properties of the victim's rights and freedoms.[1]

[1] R v Mason [2001] VSCA 62 [8]

37In the case of Mokhtari, the Court of Appeal said:

The very act of rape is inherently serious, simply by virtue of the invasion of the victim’s bodily integrity without consent.  It is, quite simply, an act of violence, whether or not accompanied by other violent conduct.  The violation is physical, emotional and psychological.  It follows that, aggravating features apart, all acts of non-consensual penetration are objectively serious, irrespective of the form and extent of the penetration.[2]

[2] DPP v Mokhtari [2020] VSCA 16 [63].

38In this case the impact of the offending on the victim as I have said has been substantial and continues.

39The prosecution submitted that the rape in this case was premeditated.  I do not accept beyond reasonable doubt that it was.  I am not satisfied the two of you had a plan to engage in consensual sexual intercourse with the victim in circumstances where she was not capable of consent.  A threesome was certainly mentioned on the videos well before the rape, but at that point the victim was not incapable of consenting.  I am not satisfied that either of you anticipated or planned that she would become incapable of consenting as events progressed and that Mr Kelly would then have sexual intercourse with her.   In my opinion, the offending was opportunistic in that once the victim became incapable of consenting, you,
Mr Kelly, penetrated the victim with your assistance and encouragement,
Mr Fielden. Even on the prosecution's evolving agreement theory, which I ultimately removed from the jury’s consideration (because the case was not opened as an agreement case), the mental state for the offending did not exist until such time as the two of you had an unreasonable belief in free agreement.

40Both Mr Chisholm and Mr Lavery submitted that the duration of the rape offence had to be less than 27 seconds, which is the amount of time over which the prosecution argued penile/vaginal penetration took place as shown in the video. The prosecution submitted that their case, as argued to the jury, was that by the commencement of video nine, it was obvious that the victim was not capable of consenting and that neither of you had a reasonable belief in consent from that time.

41The penetration that is the basis of the rape took place over a short period on any analysis.  I am satisfied that the jury verdict is consistent with a finding that whilst the penetration was taking place as shown in video nine, neither of you had a reasonable belief the victim was capable of consenting.  This is how the prosecution put the case to the jury.

42About 30 seconds into the video, the two of you have a short discussion about whether the victim was all right, which suggests that either you had a belief she was consenting, or you had given no thought to the victim's conditions.  I could not exclude either of those two states of mind beyond reasonable doubt but having regard to her deteriorating condition in video eight, it should have been obvious to both of you that she had no capacity to consent.  Clearly the jury took that view. 

43The fact that the activity covered by the charges was filmed on the victim's mobile phone is relevant to the impact on her.  The depiction of her incapacitated by drugs, being penetrated by Mr Kelly, was shocking to her.  That much is clear.  Given she did not have the capacity to agree to the sexual activity, at that stage, in my opinion it cannot really be legitimately argued she consented to the visual recording of that activity, but clearly, she did consent to the recording of the earlier activity.

44The absence of a condom in this case is not a significant aggravating circumstance, given the victim was engaging in unprotected sexual activity by consent just prior to the commission of the offence.

45In assessing the gravity of this offence, I cannot ignore the contextual circumstances, namely that shortly before the offending the victim was engaging in consensual sexual activity with both of you.  This is relevant to the assessment of your moral culpability but does not minimise the significant impact on her which is based on a shock at sexual activity taking place when she was unconscious, with Mr Kelly, as shown on the video.

46Rape is always a serious offence and the conduct shown in video nine in this case demonstrates your disregard of the victim's rights after she became unconscious. In your drug-affected conditions, the two of you treated her as an object for
Mr Kelly's sexual gratification and you assisted and encouraged this, Mr Fielden.

47The sexual assault offence was fleeting and is based on little more than a frame or two of the video.  What is does show though is that even after the two of you definitively understood the victim was incapable of consenting, as evidenced by your discussion in video nine, sexual conduct towards the victim continued.

48Both parties made submissions to me about where this offence falls on the spectrum of seriousness and in those circumstances, so I am of the view that I should classify it to some extent.  In my view, this conduct falls below the mid-range of rape offences.

Standard sentence

49As I have already noted, the standard sentence for rape is 10 years.  The standard sentence applies to an offence in the mid-range of seriousness, based only on its objective factors.   A standard sentence is just one of the many matters to which I must have regard in deciding the sentence in this case.  It is a legislative guidepost.   In deciding the sentences, I have had regard to the standard sentence.  As will be seen, the sentences I will impose are less than the standard sentence.

Delay

50There has been substantial delay in finalising this matter. Charges were filed in January 2021.  The committal proceeding did not take place until February 2022. There were false starts for the trial on several occasions, including as early as November 2022, as I follow it.  In February 2023, Judge Chettle granted a permanent stay which was appealed.   A trial date was vacated after that.  None of this delay can be attributed to either of you.  The decision to run a trial does not diminish the significance of delay as a mitigating matter.  I take into account that you have had this serious matter and the prospect of imprisonment hanging over your heads for three years, including a period where you had an expectation the case was over after Judge Chettle granted a permanent stay.  Delay is a significant matter in mitigation in this case.  However, it cannot be said that either of you have in that time demonstrated any enhanced prospects of rehabilitation and that was not submitted.

51Of course, the victim has also had to wait three years for the finalisation of this matter.  You are not to be punished for having a trial, but you are not entitled to the mitigatory benefits of a guilty plea, including the utilitarian benefits, one of which would have been the avoidance of cross-examination for her.

Current Sentencing Practices

52In considering current sentencing practices, for a standard sentence offence I am restricted to sentences imposed under the standard sentence provisions. I have had regard to the cases referred to by the prosecution, those that were imposed after standard sentences came into force.  There are of course significant differences between the cases referred to and this one. These differences were discussed to some extent on the plea.  No two sentencing cases are ever quite the same.  Current sentencing practices are a guide, but not a controlling factor in the deciding the appropriate sentence.

Pre-Sentence Detention

53Mr Kelly, you are entitled to 701 days of pre-sentence detention. This does not represent the entire time you have been in custody since this matter because you have served other sentences in that period.  You have other matters pending in the Magistrates' Court, but you were remanded on the first day of this trial and I will credit you with that time in respect of this case.  Therefore, you cannot be credited with that time again in relation to pending matters.   

54Mr Fielden, you are entitled to 785 days of pre-sentence detention.   You also received a sentence of imprisonment during the remand period.   You also have matters pending, but again I remanded you for these matters on the first day of the trial and that period will be reckoned as pre-sentence detention in this case.

55The pre-sentence detention in this case commenced in 2021 and therefore overlaps with the COVID-19 pandemic.  In that period, you were subject to the restricted conditions that were enforced in prisons in response to the pandemic, which included lockdowns, a limitation on visits and the cessation of courses.  It was submitted, and I accept, you will not receive the administrative deductions from your sentence in recognition of lockdowns because you have since been released on bail and the practice in Corrections does not allow for administrative deductions in these circumstances.  The more onerous conditions that prevailed in the pandemic is a mitigating matter of some significance in this case.

Mitchell Kelly – Personal circumstances

56You were born in July 1997.  You are currently 26 years old.  You were born in Clayton.  You have one younger brother who is 23 years old.

57When you were young, your father worked as a project manager and your mother worked as an administration manager at a medical practice.

58You went to primary school in Drouin.  You struggled academically. You were bullied at primary school.

59You then went Drouin High School and completed year 10.  You continued to struggle academically and again were the subject of some bullying.  You played football both at high school and for the Drouin football club and the Buln Buln Football Club. 

60You started using cannabis at the age of 14 and initially that was socially.

61Your grandmother died while you were at high school and that was a significant moment in your life.  You were close to her.

62When you completed schooling, you moved Broadbeach on the Gold Coast with your father.  He was working there.  You worked as an excavator in construction. You lived in Queensland for six to eight months.

63After Queensland, you worked as a bricklayer for approximately 18 months.  You also worked at an apple orchard picking apples.  

64When you were around 18 years old, you started a relationship for a few years with a woman named Tamika.  You have two children with her, Charlotte who was born when you were 18 years old, and Alexis who was born 13 months later.  Charlotte is currently 8 years old, and Alexis is 7 years old.

65You lived with Tamkia before Charlotte was born, but that relationship broke down, and then you started using methylamphetamine.  That escalated quickly.  You tried to salvage the relationship with Tamika, but you broke up again when she was just a few months' pregnant with Charlotte.

66Your continued to use drugs after that and your accommodation was transient.  

67At time of this offending, you were living in Dunn Street, Warragul and you were working as a bricklayer. You were using drugs which you funded through your employment.

68You maintain contact with your parents, who you regularly speak to you.  You have a new partner, Britt.   You have a job in the meatworks in prison, which is a trusted position and allows you to work with knives.

69You remain on good terms with Tamika and, as I follow it, Britt and Tamika get along well, and you are hopeful that on your release from custody this augurs well for co-parenting.  When you are released, you intend to live with Britt, and I think her mother as well.

70A reference was provided by your father, your mother and brother, as well as a reference from your grandfather.  Your father attended the trial nearly every day.  It is clear you have a supportive family.

71I was provided with a bundle of certificates for programs you have completed in custody, and I take that into account.

72You have a significant enough criminal history, although you do not have any prior convictions for sexual offences.  Your prior convictions start in 2017 when you were convicted of drug possession, failing an oral fluid test, contravening a family violence intervention order, a variety of dishonesty offences, possession of a prohibited weapon and bail offences.   You were placed on a community correction order with unpaid work and rehabilitation conditions.  You breached the order.  For the breaching offences, you served a four-month prison sentence.  The community correction order was varied to continue for a further 12 months on your release from the prison sentence.  You have further sentences in 2020.

73The common thread between your prior convictions and these offences, is your drug use, which, despite previous court appearances and a community correction order, you have not been able to curb.   In my opinion, if you keep using drugs, it is inevitable you will reoffend.

74Your prior convictions have some relevance to the need for specific deterrence.

75In assessing your prospects of rehabilitation for sexual offending, it is relevant to note that you have not shown remorse or insight for your offences.  You are not to be punished for exercising your right to trial, but you cannot rely on the remorse and insight which is indicated by a guilty plea.  Obviously, this is also true in your case, Mr Fielden.

76Your conduct in these offences demonstrated an entirely compromised understanding of free agreement or consent in sexual relations, which I can hardly ignore in assessing whether you might commit a sexual offence again.  These observations also apply to you, Mr Fielden.

77You were 23 years old at the time of the offending, so still a relatively young person. Your youth is relevant to the assessment of your moral culpability and requires a greater emphasis on rehabilitation.  That said, this is a serious offence and the weight to be given to youthful offender principles must be considered in light of the gravity of the offending.  Moreover, you are not a first time offender, and you have already served a prison sentence, another factor to be considered in assessing the weight to be given to those principles.  Furthermore, you are at the upper end of the age range for the application of youthful offender principles.

78You do have the support of your family, which is a protective factor against further offending.

79It seems to me you were in the wrong place at the wrong time when Mr Fielden saw you on the street in Warragul.

80Having regard to all these matters, I assess your prospects of rehabilitation in respect of this type of offending as reasonably good, but I take a guarded view of your prospects overall.

Timothy Fielden – Personal Circumstances

81You were born in October 1989.  You are currently 34 years old.  You have one older brother and three maternal half-sisters. Your parents separated when you were approximately two years of age.

82You have always had a close relationship with your mother.  She herself has a history of alcohol and cannabis use.  She had a serious motorcycle accident when she was younger, and she has never been able to work.  She moved frequently when you were young, and you often changed schools, and you recall living with both your older stepsister and your uncle at different times prior to commencing high school.

83You reconnected with your father when you were in your 20s and had a close relationship with him.  He was in poor health.  You lived with him and cared for him for significant periods.  He died in May 2021, when you were in custody.  You were not able to attend his funeral.

84You grew up in the West Gippsland region.  You were diagnosed with ADHD at a young age. You were prescribed medication, but you never took it.  You experienced learning problems that were not formally diagnosed, as well as a speech impediment, and despite being allocated an education aide you struggled with classroom learning.  You were also apparently bullied at school.

85You had a difficult home life growing up, and recall going hungry at times and never having nice clothes or toys. You say you experienced severe violence perpetrated by your brother, who may have blamed you for your father leaving.

86When you left school, you obtained an apprenticeship as a boilermaker/welder with your paternal uncle, where you remained employed for several years. You later worked in various roles such as concreting and farming.

87You say you were introduced to cannabis by your brother at the age of 11, and you report daily use of cannabis from the age of 13.  You started using methylamphetamine at the age of 22 and by 23 you were a daily user.

88When you were 22 years old you started using methylamphetamine. By the age of 23 you were using it daily.

89You have two children, Bianca aged 15, and Xavier aged 12.  You have been unable to maintain contact with your children during your time in custody for this offending.  They have been disadvantaged because both you and their mother have been in prison at the same time.

90A reference was provided on your behalf by your mother Janet Fielden, and Jake Collins, who describes you a great friend, and I take those matters into account. Two reports from Megan Rogers were tendered at the plea, one recent report dated 15 May 2024 and the other dated 1 December 2020.  In her latest report, she says you experience symptoms consistent with depression, as well as severe levels of anxiety and stress.  She said these results support a diagnosis of major depressive disorder and generalised anxiety disorder and I take this into account as impacting to some extent the weight of the sentence on you.

91Mr Lavery submitted that the principles in the High Court case of Bugmy[3] apply to you, Mr Fielden.  Your upbringing appears to have been marked by some instability and disadvantage and is a personal circumstance relevant to sentencing you.   Whether or not the label of 'Bugmy disadvantage' applies, I take into account that the formative period of your life was a difficult one that has contributed to your lifestyle of drug abuse and criminality.   The information about your background is somewhat sketchy, but I take it into account in this way.

[3] Bugmy v The Queen [2013] HCA 27.

Criminal history  

92You have a long criminal history for a variety of offences, but no prior convictions for sexual offending.  Your prior convictions start in 2008 before you had turned 20.  Your offending has included dishonesty offences, drug offences, including trafficking, significant driving offences, possession of weapons and bail offences.  You have received community correction orders on numerous occasions and several prison sentences.

93As with Mr Kelly, there is a common thread of drug use between your past offences and this matter.  For you as well, Mr Fielden, I regard general reoffending as inevitable unless you curb your drug use, and your prior convictions are relevant to the need for some weight to be given to specific deterrence in deciding the appropriate sentence.

94In respect of sexual offending, your compromised attitude to free agreement is a relevant consideration.  You are considerably older than Mr Kelly and it is concerning that in your 30s you would behave in this way.   There is a risk of further sexual offences if you continue a lifestyle characterised by drug use and criminality.  But given you have no prior convictions for sexual offences, there is some reason to take the view that it is less likely that you will commit further sexual offences.  But you have lived a life now for many years disregarding the law, immersed in criminality and drug use.

Submissions

95It was submitted that I should impose straight sentences equivalent to the time you have spent in custody in this matter.  I am not satisfied that the pre-sentence detention is sufficient having regard to the nature and gravity of the offending in this case, and the impact on the victim, and I have decided in this case to impose a head sentence with a non-parole period.

96It is difficult to separate the two of you in terms of your culpability for this offending.  You, Mr Kelly, committed the physical acts in this case, but you, Mr Fielden, with full knowledge of what was happening, assisted, encouraged or directed that activity.  I think 'assisted' or 'encouraged' is really the way that it was put.   You are also older, considerably, and have more prior convictions and therefore rehabilitation is a less significant sentencing principle in your case.  In the end, I have decided to impose the same head sentence, but reflect Mr Kelly's youth and less substantial prior convictions in a slightly shorter non-parole period. 

97In deciding the appropriate sentences, I have had regard to the matters set out in s5 of the Sentencing Act. General deterrence, which is the need to deter potential future offenders, and specific deterrence, the need to deter you, are important principles.   Just punishment is also significant.  As I said, the effect on the victim has been substantial.  Through the sentence I impose, I must denounce your criminal conduct.    Rehabilitation remains a sentencing objective of significance and I have addressed that through the imposition of non-parole periods which mitigate punishment in favour of rehabilitation, but which in my view are consistent with the objective gravity of the offending.

98I have attempted to balance the punitive aspects of sentencing which apply to this case against the mitigating matters.  The delay and the COVID conditions that prevailed during your remand are significant matters.  

99In this case, Mr Kelly, for the offence of rape you are sentenced to a head sentence of four years and two months' imprisonment.  For the offence of rape for sexual assault, you are sentenced to six months' imprisonment.  That sentence is concurrent.  I fix a non-parole period of two years and eight months.  Seven hundred and one days is to be deducted administratively from the sentence I have imposed.

100In your case, Mr Fielden, I impose a head sentence of four years and two months. For the sexual assault, six months' imprisonment.  I fix a minimum non-parole period of two years and 10 months.  I order that 784 days is to be deducted as pre-sentence detention from the sentence that I have imposed.  I will make the forfeiture order sought by the Crown in respect of Mr Fielden's phone. 

101Are there any other orders I need to make in this matter?

102MR LAVERY:   Sorry, Your Honour just said 784 I think - - -

103HIS HONOUR:  785, I beg your pardon, sorry, I am getting confused, 785.  Nothing else, Mr Hardjadibrata?

104MR HARDJADIBRATA:   No, Your Honour, no further orders sought. 

105HIS HONOUR:  All right.  Do you want the link open briefly? 

106HIS HONOUR:  I mean obviously after everyone else is off the link and I've left the court.

107MR CHISHOLM:   Just because they're together, I will organise a separate conference, if I may.

108HIS HONOUR:  Yes, okay.  All right.  You, Mr Lavery?  No?

109MR LAVERY:  Yes,

110HIS HONOUR:  Similarly?

111MR LAVERY:  Yes.

112HIS HONOUR:  Yes.  All right.  Thanks, I will adjourn until 2.15.

- - -

16 July 2024

HIS HONOUR: 

1The order that I will make in relation to the drive whilst disqualified is a sentence of one month concurrent.  Now with respect to disqualification, I am right am I not, Mr Lavery, that this driving occurred not long after he had been disqualified from a sentence in 2020.  Correct?

2MR LAVERY:  Yes, that's my understanding, yes Your Honour.

3HIS HONOUR:  He does not hold a licence, does he?

4MR LAVERY:  No, I don't believe so, Your Honour.

5HIS HONOUR:  Any licences that he holds are cancelled.  He is disqualified from driving for a period of 12 months from today's date, having regard to the complete disregard of the court's order in 2020.

6There was just one other thing I wanted to add which is that in my remarks yesterday, when I dealt with the jury verdicts and the no case orders, I believe I did not add that Charge 5 was also a charge where I entered a not guilty verdict after a no case submission, albeit that that submission came after the prosecution closing.  So I will add that into my remarks.   Mr Hardjadibrata, that was the allegation of touching with the penis, remember?

7MR HARDJADIBRATA:  Yes, yes.

8HIS HONOUR:  Yes, and you closed – the allegation was actual touching.  You closed that that would be an inference, and my ruling was that unless it was actually shown on the video, which it seemed to me was a concession – does this remind you that I would no case it? 

9MR HARDJADIBRATA:  Yes.

10HIS HONOUR:  Yes, you probably do remember that now that I – all right, look thank you both for returning.  Those are the orders that I will make today.

11MR HARDJADIBRATA:  As Your Honour pleases.

12MR LAVERY:  Thank you, Your Honour.

13HIS HONOUR:  Thank you.