Director of Public Prosecutions v Kelly

[2023] VCC 2042

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

AT MELBOURNE

CRIMINAL JURISDICTION

CR-23-00480

DIRECTOR OF PUBLIC PROSECUTIONS

v

KENNETH KELLY

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2023, 8 September 2023
DATE OF SENTENCE:	31 October 2023
CASE MAY BE CITED AS:	DPP v Kelly
MEDIUM NEUTRAL CITATION:	[2023] VCC 2042

REASONS FOR SENTENCE
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Subject:Criminal Law - Sentence  

Catchwords:  Detention for a sexual purpose - Sexual activity directed at another person - Common Law Assault - Sexual Assault – acquired brain injury.              

Legislation Cited:                Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; R v Verdins & Ors (2007) 16 VR 269

Sentence:  Total effective sentence of four years and two months imprisonment with an non-parole period of two years and four months.

6AAA But for plea of guilt five years and four months imprisonment with minimum of three years and six months imprisonment before being eligible for parole

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Buckland	Office of Public Prosecutions
For the Accused	Mr R. Battacharya	Victorian Aboriginal Legal Service

HER HONOUR:

1Kenneth Kelly, you have pleaded guilty on indictment to charges of detention for a sexual purpose, sexual activity directed at another person, common law assault and sexual assault.

2In sentencing you for your crimes I am to have regard to the maximum penalties for the offences that you have committed.  Those maximums reflect the seriousness with which Parliament regards each offence and are as follows:

(a)   Detention for a sexual purpose and sexual assault each carry a maximum penalty of 10 years imprisonment; and

(b)   Sexual activity directed at another person and common law assault each carry a maximum penalty of 5 years imprisonment.

3The circumstances of your offending were set out in a document entitled 'Summary of Prosecution Opening for Trial', dated 7 August 2023.  This is an agreed document and represents your acceptance of the elements of each offence to which you have pleaded guilty, as well as the factual basis on which I am to sentence.

4I turn now to the facts, which I will refer to in only brief compass.  I have had regard to the Crown opening in full.

Background

5By way of background, you met Michaela Reynolds[1] around 23 October 2022 outside the Centrelink office in Mildura.  Ms Reynolds was present with her belongings and you offered her a place to stay. Ms Reynolds agreed.

[1] A pseudonym.

6You lived at Orange Avenue, Mildura. Ms Reynolds understood that you lived at that address with your nephew, his partner and their three children.  Whilst at your premises, a period of some nine days, Ms Reynolds did not see any of these persons.

7The home was in poor condition overall. For example, the rear door prevented entry from the outside by use of a chair, bed slats, string and a toilet roll holder being placed against and around the back door.  These items needed to be moved to exit or gain entry from the back door.

8There was a curtain at the front door which prevented that door being easily opened from either direction without the curtain being moved.

9During the days prior to the offending and during the day of the offending you had asked Ms Reynolds to kiss you, telling her that you were going to die of bowel cancer.  Ms Reynolds refused these advances.

The Offending

10Turning now to the offending, on 1 November 2022 both you and the victim were at the residence alone.  There had been no issues between you that day.

11At approximately 8.00pm Ms Reynolds was in a bedroom when you burst open the door and entered the bedroom saying, 'You owe me, girlie, I'm going to get some of that cunt tonight, I'm going to be feeling that clit'.

12She was understandably shocked. You told Ms Reynolds to stand and get off her iPad and became enraged when she was slow to respond.

13You came close to the victim's face and said, 'I'm going to knock you out'.

14Ms Reynolds was terrified and was trying to buy time, so she told you that she needed to go to the toilet.  You followed immediately behind as she walked to the toilet.

15When Ms Reynolds sat on the toilet, you stood above her and watched her.  This is part of Charge 1, detention for a sexual purpose.  You exposed your erect penis, masturbated and said, 'I'm going to have some of that cunt tonight'.  These facts form the basis for Charge 2, sexual activity directed at another.

16When Ms Reynolds finished on the toilet, you directed her to your bedroom.  As you did so, you blocked all exit points and ushered her into your bedroom.  These facts were also part of Charge 1, detention for a sexual purpose.

17You shoved the complainant into the bedroom and said, 'Get in there and make the bed for me, I'm going to have that tonight, tell me you're going to make love to me and that you want it'.  This is part of Charge 3, common assault.

18You permitted Ms Reynolds to leave the bedroom, on her request to get massage oil, but followed her closely.  These facts form part of Charge 1, detention for a sexual purpose.

19When Ms Reynolds re-entered your bedroom, you demanded that she remove her clothes.  As she did so you said, 'I'm going to get my fingers in that white cunt, I'm going to make you bleed.  I haven't had a woman in two years'.  You also called her a 'prejudiced white slut'.

20You grabbed Ms Reynolds’ bra, raised your fist at her and said, 'I'm going to smack you to the ground'.  In fear, the victim continued undressing, which is again part of Charge 3, common assault.  The victim was sitting on the bed by this time.  You were standing at the end of the bed, wearing only a T-shirt and masturbating.

21Charge 3 I am told is put on the basis that the conduct just described as ‘common assault’ is a single transaction, where your conduct caused the victim to fear the immediate apprehension of force.

22In order to distract you, Ms Reynolds told you to take off your T-shirt so that she could massage you.  You refused and grabbed the inside of the her thigh saying, 'I want to get inside you'.  These facts are Charge 4, that of sexual assault.

23Ms Reynolds massaged your feet to be as far away as possible from your penis.  You told her to untie her hair and suck your penis.  When Ms Reynolds asked to go to the toilet again, you replied, 'You're not fucking going anywhere', and raised your fist.

24You did allow the victim to go to the toilet, blocking each of the exits to the house as you ushered her towards the toilet.  Ms Reynolds grabbed her jacket on the way.

25Someone then banged on the front door.  You told Ms Reynolds not to 'fucking say a word'.

26You tried to find clothes to wear.  Once Ms Reynolds was off the toilet you threw a blanket to her and she walked into the kitchen following you.

27Ms Reynolds then ran towards the back door but could not exit, as it was barricaded as previously described.  You followed her as the victim was yelling and told you that she 'couldn't do this'.

28You then told Ms Reynolds words to the effect that you were not going to keep her there anymore.  She ran to the front door, ripped down the curtain and left the premises.  Ms Reynolds ran directly to the Mildura police station, wearing only her jacket and covering herself with the blanket you had thrown at her.

29The detention alleged for the purposes of Charge 1 was that you remained within arm's length of the victim and stood in the doorways physically preventing her from exiting the rooms that she was in.  This occurred up and until the moment immediately prior to the sexual assault taking place.

30The other facts outlined post Charge 4 occurring, that is the charge of sexual assault, are part of the general context and circumstance of what transpired on 1 November 2022.

31You were arrested and interviewed by police on 2 November 2022.  You denied the allegations and described Ms Reynolds as a junkie who had stolen from you.  You have, in effect, maintained that account.

Gravity of offending

32In terms of the gravity of the offending, it is submitted on your behalf that the totality of your offending is to the lower to mid-range of the kind of sexual offences seen in the County Court.  I do accept that the charge of common law assault and sexual assault, as individual charges, are not at the higher end but overall this is extremely concerning offending.

33In the lead-up to 1 November 2022, Ms Reynolds had refused your earlier advances to kiss you.  You were well aware of her disinterest.

34She was living at your address at the time of the offending and in that sense it was her home, where Ms Reynolds was entitled to feel and be safe.  You took advantage of a woman made vulnerable due to homelessness, a fact of which you were clearly aware. 

35Whilst I could not form the view that your offending was planned or premeditated, you were aware of the impediments of exiting via the back door and the awkwardness of exiting the premises via the front door when you chose to detain Ms Reynolds in the way outlined in the Crown summary.

36When Charge 2 occurred, Ms Reynolds was on the toilet and also vulnerable when you exposed yourself and masturbated at what must have been around her head height.

37Your behaviour towards Ms Reynolds was crude, aggressive and undoubtedly frightening, at all times maintaining your control over her.  

38Overall, the events occurred for a period of about one hour, during which time Ms Reynolds was constantly trying to negotiate her safety.  You allowed Ms Reynolds to leave only at a point after which you were aware that someone had attended at your premises and was banging on the door.

39Whilst I have no victim impact statement, I have little doubt that Ms Reynolds would have been fearful of you from the point of your crass approach at her bedroom door until she was allowed to leave.  This is perhaps obvious in her flight from your premises and obvious distress when she arrived at the Mildura police station.

40Ms Reynolds had to flee in a state of partial nudity and would have been embarrassed and humiliated.

41On police interview, as already described, you denied the offending and spoke of Ms Reynolds in derogatory terms.

42I consider that your offending merits clear denunciation by the court and that general and specific deterrence and the protection of the community remain important sentencing factors. 

Plea of guilty

43In terms of your plea of guilty, the Sentencing Act1991 (Vic) (‘Sentencing Act’) obliges me to take into account the stage at which you entered your plea.

44Your matter resolved to the current plea on the morning your trial was due to commence, that being 6 July 2023.  Efforts had been made the week prior to resolve the matter.  You were arraigned on 6 July 2023 and the matter listed for plea hearing on 8 August 2023.

45There does remain value in saving the victim the need to give evidence at trial, noting that she was required to give evidence at committal proceedings.  There is utilitarian value in saving the community the expense of contested proceedings in the County Court.

46In addition, in the context of the COVID-19 pandemic there is additional utilitarian value in providing certainty and finality to all parties in circumstances where the court's operations were disrupted by the pandemic.

47These factors will be taken into account on your behalf.  

48You do not seek to rely on remorse.

Personal circumstances

49In terms of your personal, circumstances, you are currently aged 55 years.

50You are a man of Aboriginal heritage, born in Mildura, and report being raised in a loving home environment.  Your father managed a station in Balranald before the family moved to Coomealla.

51You are the fourth eldest of eight children.  Your siblings all reside in the Mildura area.

52You completed your schooling to Year 11.  You continued your education at the TAFE institute in Mildura where you studied horticulture.

53You then worked for the Shire Council in Mildura, operating heavy machinery.  Unfortunately you sustained a head injury at approximately 18 years of age and have not worked since.  You have earned money over the years from busking.

54You have a large family of your own, being a father to some 25 children from nine different mothers.

55You have a good relationship with your son Douglas, who resides in Red Cliffs.

56Your longest intimate relationship was for a period of some 10 years with a woman who passed away from cancer approximately two years ago.  There were no children from this relationship, and you have struggled to deal with her passing.

57You have experienced a range of traumatic events which include:

(a)   seeing an aunt self-mutilate by cutting her throat when you were approximately seven years of age;

(b)   being involved in a motor vehicle accident where you were approximately 18 years of age, requiring plates to be inserted into your skull;

(c)   being struck across your temple with a baseball bat approximately five years ago by your sister's boyfriend; this required surgical intervention by way of the insertion of screws and plates;

(d)   discovering a dead body also about five years ago on the road in front of your sister's house; and

(e)   later being involved in another family dispute at your sister's residence in which an iron stake was used.

58Materials tendered would indicate your involvement in a range of accidents and disputes resulting in injury.  You also have a history of hospital presentations due to intoxication.

59You also suffer a range of physical conditions referred to in the psychological report authored by Ms Gina Cidoni, which I will refer to at a later stage.  The conditions which she references include:

(a)   angina in 2014;

(b)   neuralgia in 2015;

(c)   chronic obstructive airway disease;

(d)   gastro-oesophageal reflux disease; 

(e)   general pain;

(f)    hypertension;

(g)   hepatitis C;

(h)   osteo arthritis and

(i)    asthma.

60During the COVID-19 pandemic you lived in a tent by the Murray River.

61You have a long-standing issue with alcohol and, in the last five years, methylamphetamine and heroin use said to coincide with finding a dead body and having to give evidence in court relating to that finding.

62Your mother died in the late 1980s from kidney disease and your father passed away on Christmas Eve of 2022.  His death was particularly difficult as you were in custody at the time and unable to attend his funeral or participate in any sorry business.

63Whilst on remand you have experienced a range of physical ailments and I have been told that since 2 November 2022 you have been taken to hospital on some eight occasions.  You have been reporting constant pain and experiencing arthritis, gout and rectal bleeding.

64In terms of medical evidence, the following were tendered at your initial plea hearing held 9 August 2023:

(a)   medical records confirming that you were taken from the Hopkins Correctional Centre to St Vincent's hospital by ambulance on 18 November 2022 after collapsing and requiring CPR on a background of polysubstance use.  No abnormality was detected with your cardiac rhythm.  Two of nine pages of the medical records were tendered;

(b)   medical records confirming that you were taken from the Melbourne Remand Centre to St Vincent's hospital by ambulance on 10 March 2023 with severe chest pain.  The notes indicate you were prescribed Aspirin.  Two of five pages of the medical records were tendered.

65You were taken to hospital the day prior to your trial being listed to commence, but I have received no additional information as to the exact circumstance.  I was not initially provided with the medical material which was apparently provided to Ms Cidoni.

66Also tendered on your behalf was a report authored by Ms Gina Cidoni, psychologist, dated 8 August 2023.  She assessed you on video conference over two hours.  You denied the offending to her, but I am told that you provided instructions to continue with your plea of guilty.

67Ms Cidoni found that you had a severe substance-use problem.  She states that you were in a highly disturbed mental state influenced by chronic and severe substance-use disorder at the time of your offending on 1 November 2022, but there is no evidence of this other than your report to Ms Cidoni.  I am told that you do not seek to rely on this aspect of her report.

68She also indicated that your cognitive profile highlights areas where you may face challenges in daily activities, particularly those involving verbal reasoning and attention-related tasks.  Ms Cidoni raised concern about a potential acquired brain injury and recommended neuropsychological testing.  In the same report she opines, 'The ABI resulting from past head injuries led to cognitive impairments, affecting his memory, attention and ability to process information'.  I found her recommendation for further enquiry as to an acquired brain injury and what is in effect a finding that there is an 'ABI resulting from past head injuries' difficult to reconcile.  I note that further in her report Ms Cidoni states:

'The extent of these cognitive deficits at the time of the alleged offence is unclear without further neuropsychological testing, but they could have played a considerable role'.

69This is of limited assistance.  At this stage your counsel did not seek to rely on any acquired brain injury to reduce your moral culpability for your offending.

70Ms Cidoni also found that you presented as below the cut-off score for post-traumatic stress disorder and that your 'endorsements of re-experiencing symptoms, hyperarousal symptoms and negative alterations in cognition and mood was low.'  At a later stage in her report she diagnoses you with post‑traumatic stress disorder.  I found these contents of her report also difficult to reconcile.

71In terms of any depressive illness, Ms Cidoni found that you endorsed mild sub‑clinical levels of psychological distress and that you endorsed low levels of depression and denied symptoms related to anxiety or stress. 

72Ms Cidoni also opines, 'When considering Mr Kelly's case, Bugmy v The Queen could apply, taking into account his Aboriginal background, traumatic experiences and losses he endured.'  Your counsel did not seek to rely on this aspect of Ms Cidoni's report

73I am otherwise told that you had a supportive upbringing and were well educated.  It is difficult to see that your childhood experience was one of profound deprivation such as to reduce your moral culpability for the offending before me.  I do accept, however, that you have experienced a number of traumatic events which, in more recent times, have led to increased reliance on drugs and alcohol.  In any event, as I have already referred, your counsel did not seek to rely on this aspect of Ms Cidoni's report

74Overall Ms Cidoni's report dated 8 August 2023 was of limited assistance to the sentencing exercise.  She does make treatment recommendations and identifies risk factors.

75Ms Cidoni also stated that you are likely to struggle in the prison environment as your history of traumatic head injuries and cognitive impairments can make it challenging for you to process information, follow rules and regulations and understand complex procedures within the prison setting.

76Based on Ms Cidoni's report, at your plea hearing on 9 August 2023 your counsel called into your aid the principles of R vVerdins & Ors [2007] 16 VR 269, particularly limbs 5 and 6; that is your diagnosed conditions increase the hardship experienced by you in prison as you suffer from mental impairment at the time of sentencing and that, secondly, a less severe sentence may be justified where there is a serious risk that imprisonment could have a significant adverse effect on an offender's mental health. I had difficulty with that submission given the vagaries of Ms Cidoni's findings.

77A supplementary report from Ms Cidoni dated 30 August 2023 was then tendered in advance of your further plea on 8 September 2023 and I have had recourse to its content.  This goes to the Verdins considerations and reinforced Ms Cidoni's opinion that your compromised cognitive difficulties results in coping with the structured prison system being more difficult for you.  She expressed concern that 'exposures to triggers inherent in prison life can intensify Mr Kelly's traumatic symptoms, amplifying anxiety, emotional instability and difficulties in emotional regulation' as detailed in the initial report.  I do not understand that Ms Cidoni reattended upon you in order to clarify her findings from her previous report.

78Concerned about your presentation and Ms Cidoni's reports, at your further plea hearing on 8 September 2023, I ordered that a psychological assessment of you be undertaken by Forensicare and your matter was listed for further plea today, being 31 October 2023. 

79During the adjourned period, a report prepared 23 October 2023 authored by Dr Ahona Guha, senior clinical and forensic psychologist from Forensicare, has been provided.  Dr Guha found that your cognitive difficulties rendered you unable to meaningfully participate in the assessment process.  She was unable to undertake a full assessment or risk assessment as a result.  Dr Guha found difficulties with your cognitive function to be evident and saw benefit in a comprehensive neuropsychological assessment.  Her report did provide some foundation for accepting that you do have some form of cognitive impairment.

80A neuropsychological report dated 26 October 2023 authored by Dr Sara Fratti, clinical neuropsychologist, has now been tendered on your behalf and has relevance to the sentencing task.  Dr Fratti had been provided with full medical records, the indictment, the Crown summary and Ms Cidoni's report, and she physically attended upon you for three hours in Ravenhall Prison.  I have had recourse from that report.

81Dr Fratti had access to a CT brain scan of 20 April 2023 which confirmed the presence of brain damage due to a likely old contusion and of an 'internal plate and screw fixation in the left orbital floor.'  The same scan also indicated evidence of neurovascular disease.

82In terms of her assessment of you, Dr Fratti writes that you obtained a full-scale IQ of 72, placing you in the third percentile, but that there was a discrepancy between non-verbal and perceptual skills.

83In brief compass, there are significant impairments in your learning and memory abilities, particularly when information is presented verbally.  There was clear evidence of executive dysfunction and severe deficits in your capacity to self‑monitor your responses and override impulsive reactions, as well as in verbal abstract reasoning, verbal fluency and divided attention.

84However you have relative strengths in your ability to learn and recall visual information.

85You display high degree of confabulation as part of your presentation.  Your maintenance of your innocence is perhaps explained in this finding.

86Dr Fratti was of the opinion that you do have an acquired brain injury which is permanent in nature and can be attributed to multiple factors, which include a history of heavy alcohol and polysubstance use, traumatic brain injuries and neurovascular risk factors.  This does leave you prone to impulsive reactions and verbal aggression when your needs are unmet or you encounter stress.  Your actions can then involve limited consideration and your cognitive and communication challenges hinders your ability to manage your emotions and responses effectively.  This would be further impaired if you are overwhelmed, emotionally heightened of substance affected.

87Dr Fratti states:

'Mr Kelly's cognitive impairments, including marked executive dysfunction, would partly contribute to the onset of erratic, disinhibited and impulsive behaviours.  His decision-making, impulse control and problem solving abilities are likely to be even more impaired when he is substance affected.  It would appear this was the case at the time of his alleged offending'.

88When asked directly as to what is the relationship, if any, between your condition and the offending, Dr Fratti referred to your executive dysfunction contributing to poor decision-making, impulsive actions and limited judgement.  Your capacity to understand and interpret social cues and other intentions is expected to deteriorate when you are acutely intoxicated.  However, she stated that, in order to gain a comprehensive understanding of the factors contributing your actions, that a forensic psychiatric report should be sought.

89I accept that there is a basis for a limited reduction of your moral culpability and the weight to attach to both general and specific deterrence given the identified areas of your cognitive impairment, which I accept were in existence at the time of your offending.

90Dr Fratti referred to evidence strongly suggesting that persons with an acquired brain injury tend to perform better in settings with a high degree of structure and routine and that the prison environment may work to your advantage.  She was not of the opinion that your acquired brain injury was likely to adversely affect your ability to cope with a term of imprisonment and was not expected to worsen in that setting.  She did comment that your mental health may be exacerbated in the custodial setting and recommended regular monitoring.  I prefer Dr Fratti's opinion in this regard and overall to that of Ms Cidoni.

91I do not accept that Limbs 5 and 6 of Verdins have application.

92According to Dr Fratti there was no evidence of depression and she did not separately address any diagnosis of post-traumatic stress.

93Since the previous listing a health summary sheet from Dr John Buckley dated 23 February 2023 has been tendered on your behalf, which confirms your past diagnoses as referred to in the psychological report of Ms Cidoni

Prior criminal history

94In terms of your prior criminal history, you do not have a history for sexual offending.

95Your criminal history from both New South Wales and Victoria has been tendered and spans a period of some 34 years with 30 court appearances.

96Your offending ranges from public drunkenness, offences of violence, dishonesty, driving offences and breaches of court orders, which include bail orders, family violence orders and sentencing orders.

97You have received terms of imprisonment on some 10 occasions, of which the longest period would appear to be 16 months.

98You are not to be punished for your criminal history a second time.  Its relevance is in the assessment of the weight to be given in sentencing to specific deterrence, denunciation and protection of the community.  It is also a mechanism with which to assess your moral culpability and prospects for rehabilitation.

99In general terms it would appear that relatively short periods of imprisonment have not deterred you, nor have supervisory orders assisted you.

Prospects for rehabilitation

100In terms of your prospects for rehabilitation you have been in custody since 2 November 2022.

101On 15 March 2023 you received a sentence of three months imprisonment from the Magistrates Court, that sentence expiring on 14 June 2023.

102You therefore have 272 days imprisonment directly referable to the offending before me, but I do take into account the fact that you have remained in custody since 2 November 2022.

103I do accept that given the loss of your father whilst on remand, inability to attend his funeral or sorry business, your repeated hospital visits, stress about your physical condition, limited access to family given they reside in Mildura and your range of physical ailments and low cognitive functioning that, in combination, your period on remand has been more burdensome.  I take that into account in a general sense.  It may be capable of having a deterrent affect and more so than previous sentences.

104Dr Fratti opines that your acquired brain injury is unlikely to resolve.  She opined:

'Mr Kelly's cognitive limitations have implications for the delivery of interventions that aim to minimise the chances of recidivism.  Any offender management interventions and community-based programs he participates in must be appropriately modified and adapted to account for his poor verbal comprehension and concreteness in thinking'.

105She recommended that you access the National Disability Insurance scheme in order to provide you with proper support coordination and allied health interventions.  I encourage you to take up this recommendation

106As referred to earlier, you have a good relationship with your son Douglas.  In a letter to the court Douglas writes that you are a great dad and a kind and loving grandfather.  You have previously lived with him and he again offers you somewhere to reside on your eventual release from custody.  Douglas is presently aged 35 years and is married with four children.  Douglas has attended your plea hearings and I accept that he is a source of support for you .

107Your future prospects appear contingent on your remaining abstinent from drugs and alcohol and obtaining appropriate interventions to assist you now that your cognitive limitations have been properly identified.

Sentencing submissions

108In terms of sentencing submissions, your counsel contends that all relevant sentencing considerations can be reflected in a term of imprisonment in combination with a community corrections order.  This was his initial submission.

109Section 44 of the Sentencing Act states that when sentencing an offender in respect of one or more than one offence a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under s18 is reckoned to be a period of imprisonment or detention already served) is one year or less.  You have 272 days available by way of pre-sentence detention.

110At your initial plea hearing held 10 August 2023, the Crown were not in a position to provide their position as to sentence due to the late provision of materials and submissions on which you sought to rely.

111Given those circumstances and, in order to be better informed, a community corrections order assessment was ordered with the further plea listed on 8 September 2023.  On that occasion the Crown submitted that your offending warranted the imposition of a head sentence with a non-parole period.

112A report from the Mental Health Advice and Response Service dated 11 August 2023 was provided.  On review of the Forensicare database, you have had brief episodes of mental health review and/or treatment from Mildura Area Mental Health Service between June 2020 and August 2022, having been diagnosed with mental and behavioural disorders due to alcohol-use dependence syndrome and acute stress disorder.  You have never been admitted as a psychiatric patient.  You were admitted to the acute assessment unit at the Melbourne Assessment Prison between 13 February 2023 and 8 March 2023.  The report does not detail the reasons for this.  At the time of the assessment you presented as settled in mood.

113In terms of your assessment as to your suitability for a community correction order, you again denied the offending.  You were assessed as being unsuitable for a community correction order.

114In any event, taking into account all relevant sentencing considerations, I am not of the view that a combination sentence is open.

115All right, any factual errors from your end, Mr Buckland?

116MR BUCKLAND:  No, that's all good to go.

117HER HONOUR:  Mr Bhattacharya?

118MR BHATTACHARYA:  No, Your Honour.

119HER HONOUR:  Were there ancillary orders?

120MR BUCKLAND:  I don't believe so, Your Honour.  I'll just double-check from the opening.

121HER HONOUR:  I thought there was a disposal order of some description.

122MR BUCKLAND:  Unfortunately it was 'to be advised' at the time that I did the opening.

123HER HONOUR:  All right, that might well be. 

124MR BUCKLAND:  Yes, Your Honour, there's a draft disposal order for a green-khaki jacket, fluffy blanket, a number of items which were obviously seized.  So I have found that.

125HER HONOUR:  Is that being pursued?

126MR BUCKLAND:  Look, I'm not instructed otherwise, Your Honour, but it's obviously what I've been provided.  I don't know when. 

127HER HONOUR:  Did you have anything to say in relation to that, Mr Bhattacharya?

128MR BHATTACHARYA:  I'm just having a look at - sorry, Your Honour, I'm just having a look at - I'm not sure if I have a specific disposal order.

129HER HONOUR:  Just some items appear to belong to Ms Reynolds and, if so, they should be returned to her, in theory.  And I don't know how the mobile phone links in.

130MR BUCKLAND:  Ultimately it's a matter for Your Honour if you want to - I don't have any more specific details.

131MR BHATTACHARYA:  I'm really only concerned about the mobile phone, Your Honour.  I've only just seen this document.

132HER HONOUR:  But I just don't see why all the items can't be returned to whom that they effectively belong, Mr Buckland.

133MR BUCKLAND:  Look, it's ultimately a matter for Your Honour.

134HER HONOUR:  Well, it's been provided as a draft.

135MR BUCKLAND:  Yes.

136HER HONOUR:  So I'm not going to make - - -

137MR BUCKLAND:  I'm quite with Your Honour actually when Your Honour says that.  I can't see why, there's nothing untoward or unusual about any of those aspects, or modified or anything like that.

138HER HONOUR:  All right.  Well, I'm not going to make the disposal order noting it's only been provided in draft form.

139MR BUCKLAND:  Yes.

140HER HONOUR:  I've got no explanation for why it should be disposing of some of the items and they could effectively go back to their respective owners.  All right.

Sentencing

141The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.

142I must also balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure where possible that offenders are rehabilitated and are safely reintegrated into society. 

143I have taken into account the relevant sentencing guidelines referred to in section 5 of the Sentencing Act. I have taken into account current sentencing practices for the offences to which you have pleaded guilty, as best that they could be ascertained, as well as the important principles of totality and proportionality.  

144I propose to impose an aggregate sentence, as I am satisfied that the offences are founded effectively on the same facts, or form or are part of a series of offences of the same or a similar character, noting all the offending is confined within a period of approximately one hour.  In so doing, I again bear in mind the principles of totality and proportionality

145Kenneth Kelly, you are convicted and sentenced to four years and two months imprisonment.  I propose a period of two years and four months before you are eligible for parole; 272 days are reckoned as having already been served.

146Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed if you had not pleaded guilty to the charges.  If not for your pleas of guilty you would have been sentenced you to a five years and four months imprisonment with a minimum of three years and six months imprisonment before being eligible for parole.

147Thank you to each of you for your assistance in this matter.  Unless there's anything further, I'll leave Mr Bhattacharya to speak with Mr Kelly.

148MR BHATTACHARYA:  Nothing further, Your Honour.

149HER HONOUR:  Thank you.

150MR BUCKLAND:  Nothing further, Your Honour.

151HER HONOUR:  Otherwise I'm closing the court till 10.30 tomorrow.

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