Director of Public Prosecutions v Kelly

[2023] VCC 1788

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised  
Not Restricted
Suitable for Publication

Case No. CR-21-02612

DIRECTOR OF PUBLIC PROSECUTIONS

v

JADYN KELLY

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JUDGE:	HER HONOUR JUDGE HASSAN
WHERE HELD:	Melbourne
DATE OF HEARING:	13 September 2023
DATE OF SENTENCE:	3 October 2023
CASE MAY BE CITED AS:	DPP v Kelly
MEDIUM NEUTRAL CITATION:	[2023] VCC 1788

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence — aggravated burglary, common law assault, theft — plea of guilty.

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:R v Verdins & Ors [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169; DPP v Meyers (2014) 44 VR 456.

Sentence:                  Total effective sentence of five years and three months.

Section 6AAA declaration: three years and three months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Cookson	Office of Public Prosecutions
For the Offender	Mr M. Page	Emma Turnbull Lawyers Pty Ltd

HER HONOUR:

1Jadyn Kelly you have pleaded guilty to one charge of aggravated burglary (Charge 1) for which the maximum penalty is a term of imprisonment of 25 years; one charge of common assault (Charge 2) for which the maximum penalty is a term of imprisonment of five years; and one charge of theft (Charge 3) for which the maximum penalty is a term of imprisonment of 10 years.

2Tendered on the plea as Exhibit 1 was a ‘Summary of Prosecution Opening’.

3In brief, the circumstances of your offending were as follows.

4You were a member of a group of five men who, on the night of 7 January 2021 at around 11.50 pm, broke into the home of Robert and Lisa Wilson.  One of your co‑offenders was William Sadlier-O’Connor who was sentenced by me for his role in this offending on 11 November 2022. Another co-offender has recently been identified as Coby Grigson and there is a contested committal listed in the Magistrates Court for him. The other two co-offenders remain unidentified.

5Mr and Mrs Wilson were at home with two of their children, aged 15 and nine and two of their grandchildren, aged nine and five.  Mrs Wilson was in a bedroom with one of the children when she heard strange noises and then male voices coming from the shed.  She woke Mr Wilson who told her to lock herself and the children in an upstairs bedroom and to barricade the door with furniture.  Mr Wilson then called the Triple 0 service.

6At about this time you and you co-offenders gained entry via the front door. You were armed with a flick knife and it was you who successfully kicked the door in.

7All five of you entered the house.  You searched the property.  You found an imitation firearm in the garage and put it down the front of your pants.  Another unidentified co-offender located alcohol in the fridge and took it out.

8At some point shortly after entering the two unidentified co-offenders and Mr Grigson left the property leaving you and Mr Sadlier-O’Connor.

9Mr Wilson saw you and Mr Sadlier-O’Connor. You passed the imitation weapon to Mr Sadlier-O’Connor and then walked to another part of the house. Mr Sadlier-O’Connor punched Mr Wilson in the face which caused him to fall backwards.

10Both you and Mr Sadlier-O’Connor kept asking where the money was.  One of you grabbed the gold chain from around Mr Wilson's neck and ripped it off before demanding his gold bracelet.  Mr Sadlier-O’Connor then punched him to the right side of his face either four or five times.

11Mr Wilson was able to get his bracelet off and threw it at you both.  He was still lying at the bottom of the stairs at this point trying to block you from going up the stairs to where his young family was hiding.

12Mr Wilson started throwing punches at both you and Mr Sadlier-O’Connor which caused you to run off taking his necklace and bracelet with you.  The other unidentified offender stole approximately $200 worth of alcohol from the fridge.

13Mr Wilson's son attended him once you had left and police and ambulance officers attended shortly thereafter.  Mr Wilson was taken to the  Sunshine Hospital for treatment to his injuries.  As a result of the assault, he required stitches to a cut above his eyebrow and sustained a fractured eye socket.

14You were identified as a suspect from DNA found on a cigarette butt at the property. You were further identified from the CCTV footage.  

15On 25 March 2021 you made a no-comment record of interview. You were remanded into custody.

Victim Impact Statements

16Tendered at the plea were victim impact statements by Robert Wilson, Brandon Wilson, Lisa Wilson, and Samantha Reese.

17Robert Wilson says that the offending has made him a different person.  He says he still does not sleep through the night, and he is stressed from the moment he leaves for work until he gets home in case something has happened while he is not there.

18He says he is now very quick to jump to aggression.  He says his vision has deteriorated.  He says his two kids and his two grandkids are now in counselling and his younger son and grandson often sleep in his and his wife's bed because they are scared to sleep alone.  He says his 16-year-old moved out because he does not feel safe in the house anymore.

19Brandon Wilson says he also struggles to sleep and has nightmares every night and so is constantly exhausted.  He says that for months he would wake at 2 am and call his sister crying because he was hearing things and thought someone was outside.  He says he is constantly living in fear of every slight noise because it brings everything back.

20Lisa Wilson says this has had a massive impact on the whole family.  She says her grandson, Levi, suffers anxiety and night wetting and has had to wear nappies for which he was bullied at school.  She says both Levi and Connor have nightmares about what happened.  She says she has PTSD and still does not sleep through the night.  She says she could not be at home alone for months after the offending.  She says she no longer goes on walks at night and never goes upstairs in her own home unless another adult is home.

21Samantha Rees is Levi's mother.  She says Levi has gone backwards and his bright future has been wrecked.  She says she cannot shower or go to the toilet alone anymore because Levi always has to be with her.  She says that every time they go somewhere Levi is scared that they will be locked in and unable to get out.  She says Levi is scared the offenders will come back and hurt his family. She says Levi has been diagnosed with anxiety and is on medication. She says before this incident Levi was sleeping by himself and was not wearing nappies at night. She says after this incident Levi has to sleep with her and is bedwetting and so is back wearing nappies at night. She says she is heartbroken to see her young son regress.

Personal Circumstances

22I turn now to your personal circumstances and in outlining your personal circumstances I refer to the psychological report of Carla Lechner, clinical psychologist dated 5 August 2022 which was tendered at your plea and also to the submissions made by your counsel, Mr Page.

23You were born on 28 December 1995 and you are 27 years old. 

24You were born and grew up in New Zealand. Your parents separated prior to your birth, and you have never met your father or your nine half siblings on your father’s side. You grew up in the care of your maternal grandparents until your grandmother left the family home after which you lived with you grandfather, your mother, and an uncle.

25You only went to school until the age of about 14. Your family moved around a lot, and you changed schools several times. You told Ms Lechner although you have never had a diagnosis of ADHD you were restless and unsettled at school as well as disruptive and often in trouble for fighting.

26You had unstable, intermittent work in your teens. Your girlfriend, Tenille fell pregnant. Your daughter was born on 8 August 2014 when you were aged only 18 years old.

27Tenille and your daughter relocated to Australia with her family in 2017 without telling you. You followed them in the following year and briefly resumed your relationship before separating. You currently have limited access to your daughter. You would like to see more of your daughter and have a better relationship with her.

28You have worked in factories and labouring in Australia.

29You do not hold Australian citizenship.

30You have no prior criminal history in New Zealand or in Australia.

31You began smoking cannabis at the age of only 11 or 12. You had a daily habit between the ages of 13 and 17. You told Ms Lechner when she spoke with you back in July 2022 that you now only smoke cannabis occasionally.

32You told Ms Lechner that you began using ice daily between the ages of 15 and 18, and that you were using ice prior to your arrest. You told her that you had used other drugs recreationally. You told her alcohol was a problem for you. You said if you began drinking you would 'drink until [you] drop' which for you involved drinking up to two slabs. You told Ms Lechner you had slowed your drinking right down.

33You told Ms Lechner that you were depressed and drinking when you committed the charges for which you fall to be sentenced. You told her you did not want to talk about your offending.

34Ms Lechner gave the opinion that you presented with symptoms of alcohol use disorder in partial remission. She was of the opinion you had a likely diagnosis of adult ADHD. She found you to be agitated and that you presented as socially and emotionally overwhelmed. She gives the opinion that your life destabilized when you came to Australia and you relapsed into heavy drug and alcohol abuse. She gives the opinion that you would benefit from specialized mental health support. Ms Lechner conducted testing in which you self-reported your psychological and physiological symptoms. The testing Ms Lechner states was consistent with a diagnosis of clinical depression. Ms Lechner says, 'Mr Kelly is currently reporting an 'extreme' level of depression and 'severe' psychological distress and certainly presented as psychologically fragile'. She gives the opinion that because of your depression you would find custody more onerous than a person not suffering such a mood disorder, and that your mental health was at risk of deteriorating in a custodial setting.

35You were granted bail on 5 July 2021.

36You have been on the CISP programme since this time. You have had drug relapses on this programme but have not reoffended, although I was informed at your plea that you were involved in an incident in Sydney involving alcohol.

37You moved to Sydney last October and got work with your mother’s cousin, your uncle Mikaera Ormsby. Mr Ormsby wrote a reference to the court on your behalf. He says you are living with him and working full-time. He says you are enjoying your work, going to the gym and trying to live a positive life.

38References were also tendered from your mother and your grandmother. You have the continued support of your family. Your mother says since you moved to Sydney she has noticed big changes in you and that you are doing well.

Submissions

39I turn now to the submissions of the parties, and I begin with the submissions made on your behalf by Mr Page. In mitigation Mr Page relied upon the following matters.

40First, your plea of guilty which Mr Page submitted has spared the victims and the community the cost and trauma of a trial. Mr Page submitted that by virtue of your plea you have acknowledged your criminal responsibility. He submitted your plea has greater utilitarian value in the context of the still significant backlog of court work occasioned by the suspension of jury trials during the Covid 19 pandemic.

41Secondly, he relies on your lack of a criminal history and your current positive and pro-social life in Sydney. He submitted your prospects of rehabilitation are good and that specific deterrence has little application as a sentencing consideration.

42Thirdly, you are liable to deportation if you are sentenced to a term of imprisonment of more than 12 months. He submitted the prospect of deportation will weigh heavily upon you, as you want to remain in Australia especially given this is where your young daughter lives.

43Fourthly, he relies on your youth. You were only 25 when you committed these offences. He submitted that as a youthful offender your rehabilitation is a more important consideration than general deterrence in your case. You would be vulnerable in custody as a first-time youthful offender, and your offending should be considered in the context of your immaturity.

44Fifthly, he submitted on the basis of Ms Lechner’s report that Verdins[1] principles 5 and 6 were engaged in sentencing you in that her report establishes that your fragile mental health would make your experience of custody more onerous than that of a prisoner without your mental health difficulties and that your mental health may well decline in custody.

[1] R v Verdins & Ors [2007] VSCA 102 (“Verdins”)

45Sixthly, he relied on the delay in finalising this matter. It is now almost three years since you committed these offences and Mr Page submitted that you have demonstrated your rehabilitation and have also experienced considerable stress and anguish with these matters hanging over your head.

46Finally, in his written submissions Mr Page submitted that your offending was at the lower end of seriousness for the offence of aggravated burglary given it did not involve a firearm, you did not enter with an intent to assault and were only armed with the flick knife to gain entry, and in any event did not use the flick knife once you entered the property. He submitted your offending was of short duration and that the offence of aggravated burglary with intent to steal is triable summarily. In oral submissions Mr Page somewhat revised his position and accepted that this was in fact a serious example of aggravated burglary.

47On the question of parity, he submitted that unlike Mr Sadlier-O’Connor you do not have a criminal record. He submitted also that unlike Mr Sadlier-O’Connor you have demonstrated your rehabilitation, although he acknowledged that Mr Sadlier-O’Connor pleaded guilty at an earlier opportunity and remained in custody from the time of his arrest in February 2021.

48Mr Page submitted that all the various sentencing objectives could be met by a combined sentence of imprisonment with a lengthy community correction order.

49Mr Cookson appeared for the prosecution.  He submitted that this was a very serious aggravated burglary which was planned, and the property targeted. It was committed at night in company and has had profound effects on the victims. You were armed with a flick knife although Mr Cookson submitted the prosecution accepted that you were armed to gain entry and that you did not use the knife to injure or assault anyone.  On the charge of common assault Mr Cookson submitted the prosecution position is that you were acting in company with Mr Sadlier- O’Connor only to this extent and none of the injuries suffered by Mr Wilson are directly attributable to you. In this respect you played a more limited role than Mr Sadlier-O’Connor.

50Mr Cookson accepted the utilitarian value of your plea and the relevance of deportation in your case, although he submitted the material demonstrates you appear to still have significant ties to New Zealand. He submitted that your youth does not displace the proper application of general deterrence in a case involving a serious example of aggravated burglary. He submitted the evidence upon which the defence seek to establish the application of Verdins Limbs 5 and 6 was dated, involved self-reporting and did not meet the evidentiary bar required to support the application of these principles.

51On your prospects of rehabilitation, he submitted that I should be somewhat guarded given that there were lapses in your CISP compliance while you were under the supervision of the courts.

52He submitted the only appropriate sentence was a sentence of imprisonment consisting of a head sentence and a non-parole period.

53I turn now to my own assessment of the objective gravity of your offending and your moral culpability and in doing so I simply restate what I said when I sentenced your co-offender Mr Sadlier O’Connor.

54This aggravated burglary was committed at night, in company, on a family home in which there were children.  You have offered no explanation for your offending other than you were intoxicated. 

55I accept the prosecution submission that the victims’ home must have been targeted and that you knew it was a family home before you went in.  The door was broken down to gain entry and you were armed with a flick knife.

56You entered with an intent to steal, however, as the courts have repeatedly observed when armed and intoxicated offenders burst into a home in the middle of the night and confront the occupants the situation is volatile and unpredictable and what follows can often involve serious violence.  This is precisely what happened here with Mr Wilson being subjected to a vicious assault perpetrated by your co-accused, Mr Sadlier-O’Connor, in which you, yourself, were involved to some extent.

57Your offending is characterised by many of the well-recognised aggravating features which make the offence of aggravated burglary such a serious offence.[2]  It has had a profound effect on the victims, and I regard your moral culpability as high.

[2] DPP v Meyers (2014) 44 VR 456, 498

Sentencing Principles

58I turn now to the application of the relevant sentencing principles.

59Again, I restate what I said to Mr Sadlier-O’Connor, this was appalling offending in which a family, including children, was terrorised in the family home. General deterrence, denunciation and community protection are all engaged in sentencing you. You must also understand the consequences of taking part in such disgraceful behaviour and specific deterrence is also a relevant sentencing consideration.

60I take into account your plea of guilty, and I sentence you in accordance with the principles set out in the case of Worboyes[3].

[3]  Worboyes v The Queen [2021] VSCA 169

61I reject that Verdins principles are engaged in sentencing you. I accept the prosecution submission that the evidence upon which you sought to rely was inadequate. It was dated and your mental health assessment was dependent largely on self-reporting. Having said that I do nevertheless accept prison will be a very difficult place for you given that you are young and being sentenced to custody for the first time.

62I take into account also that the prospect of deportation renders a term of imprisonment more onerous and also in your case that it destroys your opportunity to settle in this country which will be particularly difficult for you because your daughter lives here and deportation may jeopardize your ability to have a relationship with her.

63I am prepared to assess your prospects of rehabilitation as reasonable notwithstanding the very serious nature of your offending and notwithstanding also that you do have some ongoing susceptibility to drug and alcohol misuse. You are a young person still and the sentence I impose must have regard to your rehabilitation.

64I take into account the delay in finalising this matter. This was mainly attributable to you contesting the charges but be that as it may, you have now had this hanging over your head for close to three years during which you have not re-offended, although as has been discussed there has been a recent incident involving you in Sydney.

65The issue of parity is an important consideration in sentencing you. I sentenced Mr Sadlier-O’Conner to a head sentence of five years and nine months with a non-parole period of four years. The individual sentences were five years for the offence of aggravated burglary, two years for the offence of intentionally causing injury and one year for the theft.

66In respect to the assault on Mr Wilson you have pleaded guilty to the lesser charge of common assault carrying a lower maximum penalty and you do not fall to be sentenced for causing the injuries suffered to Mr Wilson, only for participating in the assault. This is the most significant area of disparity between you and Mr Sadlier-O’Connor. Apart from this you have no criminal history whereas Mr Sadlier O’Connor did have one relevant although much less serious prior conviction. He was and is five years older than you. As has been discussed he was remanded in custody from the time of his arrest and therefore was not able to put before the court any evidence of demonstrable rehabilitation in the community, but on the other hand his plea was an early one. Like you he was a citizen of New Zealand facing deportation leaving a son here in Australia in his case. I accepted, as I do in your case the prospect of deportation was particularly difficult even momentous for him.

67In my view while there is room for some disparity in your favour on Charges 1 and 3, it is to a very modest degree.

68Given all the matters I am required to take into consideration under the Sentencing Act and matters personal to you, I intend to sentence you as follows.

69You can remain seated in the circumstances, Mr Kelly.

70On Charge 1 you are convicted and sentenced to four years and nine months' imprisonment.

71On Charge 2 you are convicted and sentenced to one year imprisonment.

72On Charge 3 you are convicted and sentenced to nine months' imprisonment.

73Charge 1 is the base charge and I direct that four months of the sentence on Charge 2 and two months of the sentence on Charge 3 be served cumulatively upon Charge 1 and upon each other.

74That makes a total effective sentence of five years and three months. I direct you serve a non-parole period of three years and three months.

75Pursuant to s18 (4) of the Sentencing Act 1991 I declare that you have served 122 days pre sentence detention and I direct this be entered into the records of the Court.

76Pursuant to s6AAA of the Sentencing Act 1991 had you pleaded not guilty I would have sentenced you to a total effective sentence of seven years and six months with a non-parole period of five years and six months.

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