Director of Public Prosecutions v Kelly
[2022] VCC 27
•24 January 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01226
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TREVOR KELLY |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 January 2022 | |
DATE OF SENTENCE: | 24 January 2022 | |
CASE MAY BE CITED AS: | DPP v Kelly | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 27 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – aggravated burglary, causing injury intentionally, causing injury recklessly, criminal damage and related summary charge commit indictable offence whilst on bail – mitigating factors - early plea of guilty –Bugmy v The Queen (2013) CLR 571 considerations – difficult circumstances in custody due to the pandemic
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Bugmy v The Queen (2013) CLR 571; Worboyes v The Queen [2021] VSCA 169; R v McKee (2003) 138 A Crim R 88, 94
Sentence: Imprisonment for a period of eleven months to be followed by a Community Corrections Order for a period of two years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H. Edwards | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr Z. Petric | Adrian Paull Criminal Lawyers |
HER HONOUR:
1Trevor Kelly, you have pleaded guilty to an indictment containing two charges of damaging property, one charge of aggravated burglary, one charge of causing injury intentionally, and one charge of causing injury recklessly, and a related summary charge of commit indictable offence, namely aggravated burglary, whilst on bail.
2The seriousness of the charges is in part reflected in the maximum penalties that can be imposed and they are 25 years' imprisonment for aggravated burglary, 10 years' imprisonment for causing injury intentionally and criminal damage, and five years' imprisonment for causing injury recklessly. The maximum penalty for the summary charge is three months imprisonment or 30 penalty units.
3You admitted your extensive prior criminal history. It spans a period from 2003 to October 2020. There are relevant appearances for crimes against the person committed by you in 2007 (recklessly cause serious injury), 2008 (intentionally cause injury and unlawful assault), 2010 (recklessly cause serious injury and assault in company), and 2011 (recklessly cause injury).
4In the past, you have been dealt with by a variety of dispositions, including community-based orders, youth detention orders, and sentences of imprisonment.
5You are now aged 36 and you have spent a considerable part of your late teens and early adult years cycling in and out of custody due to your history of offending. Without a commitment to changing your behaviour, you face the real risk of becoming institutionalised.
6Following your arrest on these current charges on the 20 February 2021, you were remanded in custody.
7On 3 August 2021 at the Stawell Magistrates' Court, two separate terms of imprisonment were imposed of seven days and three months, respectively, for summary charges relating to hinder police and firearms offences.
8The circumstances of your current offending are set out in the summary of prosecution opening dated 9 August 2021.[1]
[1]Exhibit 1.
9The offending occurred in the evening of 15 and 19 February 2021.
10I will now proceed to sentence you in accordance with the facts outlined by the prosecutor and contained within that opening.
11The offending involves two victims, Antoinette Christian, and her daughter, Shona Christian. At the time of the offending, they were aged 49 years and 25 years, respectively.
12They both reside in a property at 7 Centenary Court, Stawell. You live nearby at 9 Centenary Court, Stawell. You had only recently commenced a relationship with Shona. Her mother did not approve the relationship because of expressed concerns about how you treated her daughter.
13In brief, the first incident on the 15 February 2021 concerns you breaking a laundry window at 7 Centenary Court in the context of being upset after being told by Antoinette Christian to pack up your belongings and to leave her house (Charge 1 - criminal damage).
14The second incident occurred in the context of Shona Christian wanting a break from the relationship. Shona had called you to talk about whether you had located your dog who had earlier gone missing. You invited her over to your place where the conversation then turned to the status of your relationship. Shona left when she felt the conversation was going around in circles.
15There was an exchange of words, and you followed her home. As Shona approached the front lawn of her home, you rushed past and grabbed the front metal security door and wrenched it off its hinges (Charge 5 - criminal damage).
16You then went inside the victims' home (Charge 2 - aggravated burglary and Summary Charge 8 - commit indictable offence whilst on bail) and assaulted Antoinette Christian by punching her to the left side of her face in the circumstances as described in paragraphs 24 to 25 of the prosecution opening.
17Antoinette Christian suffered swelling and bruising to the left side of her jaw and cheek area (Charge 3 - intentionally causing injury).
18Shona Christian suffered scratches on both sides of her chest and a bruise to her left of her chest (Charge 4 - recklessly causing injury) when she endeavoured to intervene to stop the assault on her mother.
19You picked up a pot plant and threw it at a wall, causing a large hole in the lounge room wall (Charge 5 - continuation - criminal damage).
20On leaving the property, you pulled the letterbox out of the ground and left it near the victims front door (Charge 5 – continuation - criminal damage).
21There have been no victim impact statements filed. However, common-sense dictates that both Antoinette Christian and her daughter, Shona, would have been frightened by your actions. By assaulting both victims, you showed real disrespect and your unruly, aggressive behaviour and inability to manage your anger must be condemned.
22The events would have been a very traumatic for both victims, who were entitled to feel safe in their own home.
23An aggravating feature of the offending is that you were on bail at the time of the offending as well as subject to a community correction order. This offending contravenes that order and reflects poorly on your rehabilitation prospects.
24Deterrence, denunciation, and community protection are all every important sentencing conversations, noting the offending occurred in a family violence context.[2]
[2] Pasinis v The Queen [2014] VSCA 97 at [57]; Filiz v The Queen [2014] VSCA 212 at [21]; Laa v The Queen [2020] VSCA 136 at [50] – [51]; Stapleton v The Queen [2020] VSCA 147 at [60].
25I must sentence you, having regard to the objective gravity of your offending. Aggravated burglary is a serious charge, and I have already told you the maximum sentence that I could impose is 25 years' imprisonment.
26In Filiz v The Queen [3] Maxwell, P and Redlich, JA said:
'The gravity of any particular aggravated burglary is to be assessed in accordance with the circumstances of the entry and the gravity of the offence which the offender intended to commit once inside the premises.'[4]
[3] [2014] VSCA 212
[4] ibid [16]
27It has been considered that this is an example of family violence offending: you damaged the front door of the premises upon entry, and then you injured both Antoinette Christian and her daughter, Shona, who, as I have said already, are entitled to feel safe in their own home.
28Notwithstanding those factors, I accept the aggravated burglary falls within the lower range of seriousness for this very serious offence, and you will be sentence don that basis.
29You state that your behaviour was influenced by drug taking. You have expressed remorse for your actions and accept that Antoinette and Shona Christian both do not deserve to feel intimidated or afraid in any way. And you directly apologised for your offending behaviour during the plea hearing.
30I accept that your drug use would have impaired your behaviour and the ability of you to be able to properly reflect on the consequences of your actions. Whilst providing an explanation, your drug use does not excuse your behaviour.
31And any sentence must address your underlying offending behaviour so as to avoid a repetition of this sort of behaviour in the future.
32Your plea hearing was conducted in the Koori Court. And I noted this is the first occasion where you were able to utilise this process. And a sentencing conversation was held between yourself, Uncle Mark Bland, and Auntie Sandra Stewart, both Elders and Respected Persons. You spoke openly to them about your personal circumstances and history and expressed your sincere remorse. You acknowledged the harm that your actions would have caused the victims.
33The Court of Appeal in Victoria has recognised that the 'sentencing conversation' in the Koori Court is designed to further the reformation of an Aboriginal offender.[5]
[5] See The Queen v Steelie Morgan [2010] VSCA 14 at page 11.
34During the sentencing conversation, you frankly acknowledged the impact of drug taking on your behaviour and also the need to address your anger in the future.
35You demonstrated appropriate remorse and insight into why it was that you behaved as you did on this occasion, as well as the seriousness and the effect of your offending behaviour. You expressed a strong intention to remain sober, and a willingness to undertake an anger management course or other rehabilitation program to address your chronic underlying conditions so that you may pursue your goals of becoming employed ,and your commitment to not to have any further engagement with the criminal justice system.
36I accept that you are genuine, and you are fully committed to remaining sober, to undertake any necessary programs and to seeking support in the community to address your goals.
37Both of the Elders condemned your behaviour and stated that violence against women, and indeed any form of violence against the person is not acceptable behaviour within the Aboriginal culture.
38Auntie Sandra emphasised the importance of you needing to address your long-term trauma history through appropriate counselling, as well as the importance of maintaining strong cultural connections and connecting to your country to assist you to develop your future goals.
39Uncle Mark also emphasised the need for you to focus on your health and well-being so that you may have a better future. He recommended that you undertake an anger management course so that you can control your behaviour and to learn to act more appropriately when challenged because of your bad behaviour.
40I accept that you engaged appropriately and respectfully with both the Elders. You did not shy away from discussing with them what was driving your offending. you were genuine in your discussions with them, and I have taken that into account.
41I accept that you genuinely participated in the sentencing conversation, and that is a mitigating factor in your favour.[6]
[6] See The Queen v Steelie Morgan [2010] VSCA 14 at [11], confirmed in Honeysett v The Queen (2018) 56 VR 375 and DPP v Heyfron [2019] VSCA 130.
42I consider that you showed genuine remorse, as well as good insight into your offending behaviour, as well as a proper understanding of what the steps are that you need to take to address your offending behaviours in the future.
43I have had regard to your personal history and circumstances.
44You are Aboriginal and identify as Gundjitmara through your mother's heritage.
45You were born in Warrnambool. You are the fourth of seven children. Your oldest brother died from a degenerative condition. There are two sisters and three surviving brothers.
46Your father committed suicide when you were aged four. Your mother was unable to care for the children and eventually, you and all the siblings were removed from your her care.
47Throughout your childhood, you were separated from your family and placed in numerous foster care arrangements. You had a very disrupted childhood and lived in Heywood, Portland, Hamilton, Mt Gambier, Melbourne (various suburbs), and Framlingham.
48Whilst in care, you witnessed family violence and abuse. You were bullied and racially abused and harassed by others during your childhood, including by other children.
49Your formal education was significantly disrupted. You left school early and only have Grade 4 level of education. You are illiterate and have learning difficulties.
50You have been on the Disability Support Pension due to your illiteracy. You have some limited work experience working with horses and also labouring/brick laying experience.
51You have indicated a strong desire is to work in the future. You would like to run your own business working with horses.
52Currently, efforts are being undertaken to enable you to obtain some further support through the National Insurance Disability Scheme.
53You have a son, Isiah, who is aged 16. You have not had an effective relationship with him, and you express a strong desire to reconnect with him. It upsets you greatly that you are estranged from him, and in the future you will need to seek professional advice and support to make efforts to re-connect with your son in a manner that does not breach any court orders.
54You have a long and concerning history of alcohol and substance abuse, you commenced drinking and smoking cannabis when you were aged only nine to 10 years. In the past, you stopped using cannabis; however, you have a chronic long-term and problematic history of methamphetamine use. You have used that drug since you were 19, and at the time of this offending you were using up to five points per day.
55I accept that you grew up in an environment of significant disadvantage and social deprivation. I accept there is a link between your personal development and drug and alcohol abuse, and the circumstances in which your addictions evolved can be attributed to your history of neglect and exposure to such behaviour at an early age.
56I consider, having regard to your history and personal circumstances, that the Bugmy[7] principles apply. You suffered profound disadvantage and abuse during your formative years, and that is relevant, and I have taken that into account in assessing moral culpability. Those impacts do not diminish with the passage of time and further offending. Although, on the other hand, the importance of community protection must also be acknowledged.
[7]Bugmy v The Queen (2013) 249 CLR 571 (“Bugmy”).
57The genesis of your addiction to drugs started at a very early age, and I am mindful of the authorities allowing for some mitigation of moral culpability where drug addiction commences at an early age, and I have taken that in to account.[8]
[8] R v McKee (2003) 138 A Crim R 88, 94 [21] (Buchanan JA).
58I have therefore reduced your moral culpability and moderated the need for general and specific deterrence to a modest extent.
59There are, however, some protective factors that you can rely on to support your stated goal of reform. Your mother and grandfather live in Stawell, and they remain supportive of you. Your mother participated online during the plea hearing and expressed her ongoing support.
60Fortunately, you do have your own home in Stawell that is currently available for you to use upon your eventual release.
61In addition, you have support from the Budja Budja Medical Clinic. And in the past you have successfully engaged with the Social and Emotional Wellbeing Team and you have been able to access medical treatment in all respects of your health, including Aboriginal health assessments regularly.
62Currently you are fit and well. You maintain your fitness through boxing. You expressed the desire to maintain that fitness upon your eventual release.
63
You have shown that you can engage appropriately with mental health conditions. Prior to remand, you had actively engaged with a mental health worker from
28 October 2020 to the 24 February 2021. You also had some alcohol and drug counselling, and successfully completed the Koori Community AOD program as part of a community correction order.
64Overall, I am cautiously optimistic about your rehabilitation prospects.
65Given your past history and antecedents and your past difficulties in maintaining and engaging with appropriate supports services you will, however, need to really commit to change to make good your stated intention to remain away from jail.
66I have taken into account all the matters put on your behalf in mitigation of penalty. You entered a plea of guilty at the earliest stage at committal mention on
9 July 2021. You spared the State the cost and expense and inconvenience of a trial and, in particular, you have spared the witnesses from further trauma associated from being cross-examined. Your plea has real utility, and that is particularly so in the context of the COVID-19 pandemic. You have facilitated justice and your sentence will be discounted accordingly.67I accept through your plea that is indicative of genuine remorse and also shows a willingness on your part to accept responsibility for your conduct.
68You used your time in prison to reflect on your behaviour and you do understand that the consequences of your actions have had a lasting impact upon the victims. You indicated during the sentencing conversation that you felt terrible about your behaviour. And you acknowledged that when you use the drug ice, you do stupid things.
69Your comments reveal a degree of insight and victim empathy, and an understanding of how drugs impact your behaviour.
70Overall, I accept you have good insight into your offending behaviour, and you have expressed a high level of remorse for your actions, and that has been taken into account in your favour.
71All those features combine, such that I consider that you do have potential to change and reform, but you will need to accept help and assistance of the kind that was suggested by each of the Elders.
72I recommend that consideration be given to enabling you to attend and participate in rehabilitation programs that are culturally supported upon your release, such as the Wulgungu Ngalu Learning Program or the Wimpatja Healing Program to address your underlying drug addiction and other complex needs.
73I have had regard to the difficult circumstances of your confinement and the fact you have been held in custody on remand during the COVID-19 pandemic with associated restrictions on personal visits and severe limitations in terms of program delivery.
74It has been accepted by the courts that the pandemic has increased anxiety for prisoners and their families.
75I further accept that your time in custody has been more onerous than usual. You have experienced many lockdowns and periods of isolation, including, currently, due to the necessity of being in quarantine, having attended court in person for your sentencing conversation.
76The Court of Appeal has confirmed that a plea of guilty entered during the pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea in these circumstances should therefore attract a more pronounced amelioration of sentence than at another time[9]
[9] Worboyes v The Queen [2021] VSCA 169 (“Worboyes”) at [39].
77Given the current situation, it is clear the pandemic will be continuing to impact correctional facilities for some time to come, and I have taken that into account.
78In formulating the appropriate sentence, I must impose just punishment. I have had regard to the gravity of the offending and the sentencing principles to which I have earlier referred. I have had regard to the gravity of the offending and the sentencing principles two which I have earlier referred.
79I have also had regard to the totality principle in the context of the other sentence that you have completed during your current time on remand, and also the fact that you have been in continuous custody since the 20 February 2021.
80Mr Petric sought a combination sentence being equivalent to time served, to be followed by a and a therapeutic community correction order on your behalf.
81Ms Edwards sought a term of imprisonment and a non-parole period being fixed, given the serious nature of the offending, namely a confrontational aggravated burglary that occurred in the setting of family violence involving two victims.
82Following the adjournment, you were assessed and you have been found to be suitable for a community correction order.
83As was made clear in the guideline judgment of Boulton,[10] in an appropriate case, a such an order does provide a flexible sentencing option, enabling both punishment and rehabilitation purposes to be served together. And it is the case that such an order can be punitive and achieve deterrence.
[10] Boulton v The Queen (2014) 46 VR 308
84Overall, I have come to the conclusion that a combined sentence is appropriate, and I have fashioned your order to address your particular circumstances, the causes of the offending, such as to support you in community and to minimise your risk of further reoffending by promoting your rehabilitation.
And I have regard to what was said in Boulton v The Queen, where the Court of Appeal said, 'Although as the order of seriousness of offending conduct increases the likelihood that such a disposition will be appropriate diminishes'. Nonetheless, the court said that such an order may remain open even in cases of very serious offending which might previously have attracted a medium term of imprisonment.[11]
[11] Ibid, 338 [131]
85I accept the recommendations made by Ms Olga Perifanos in her community correction order assessment outcome report dated 19 January 2022. Her report incorporates the recommendations of Gregory Lane, registered nurse, Mental Health Advice and Response Service Assessment report dated 19 January 2022.
86Mr Lane states that you have a mild mental health problem, and therefore he recommends that you would benefit from a mental health condition being added to your community correction order.
87He considers that you would benefit from psychological counselling via a GP Mental Health Care Plan or other program in the community.
88Given your extensive trauma history, I consider that recommendation is appropriate. As Auntie Sandra pointed out, it would be worthwhile for you to speak with a psychologist to address your past traumas, grief issues, and mental health needs. You have expressed a willingness to engage in such services.
89In all the circumstances, I consider that a community correction order in the terms proposed and in the manner that has been discussed with you is just punishment and provides for your rehabilitation and for the safety and protection of the community.
90You have given your verbal consent to the making of such an order. I have explained to you, and you understand the order. In the vent that you contravene such an order, that would be a fresh offence for which you could be punishable by up to three months' imprisonment, and your order would be the subject of a contravention proceeding.
91I will now announce the formal court orders:
92On Charge 1 - Criminal damage (window) - you will be convicted and sentenced to seven days' imprisonment.
93Charges 2 - aggravated burglary (house) and Charge 3 - cause injury intentionally Antoinette Christian) - given that these charges arise out of the same series of events, I am going to impose an aggregate sentence of 10 months, to be followed by a community correction order of two years' duration with supervision, special conditions treatment, and rehabilitation for drugs, mental health, and programs to reduce reoffending.
94Charge 4 - cause injury recklessly (Shona Christian) - you will be convicted and sentenced to three months' imprisonment.
95Charge 5 - criminal damage ( letterbox, metal security door and lounge room wall) - you will be convicted and sentenced to three months' imprisonment.
96Summary Charge 8 - commit indictable offence whilst on bail (aggravated burglary) - convicted and sentenced to one month imprisonment.
97I order that one month of the sentence imposed with respect to Charge 4, that is dealing with Shona Christian, and the cause injury recklessly charge, be cumulative upon the sentences that I have imposed for Charges 2 and 3, making a total effective sentence of 11 months' imprisonment, and that will be followed by the two year community correction order in the terms that I have already described.
98I declare 267 days pre-sentence detention and direct that that be entered into the records of the court.
99I make a declaration pursuant to s6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a term of imprisonment of three years to serve, two years non-parole period. And that concludes my sentencing remarks. I do not believe there are any other ancillary orders that I need make, Ms Edwards?
100MS EDWARDS: No, Your Honour.
101HER HONOUR: All right, good. All right, so that concludes my formal sentencing remarks. Trevor, it was a bit long, but I need to explain why I have done what I have done to everybody so that they can be properly informed. What I propose to do now, Trevor, is I will leave the Bench, and I will ask that my tipstaff formally adjourn he court, and everyone eels will leave the proceeding, except for Mr Petric, who will then be able to have a discussion with you.
102OFFENDER: Yep, no worries.
103HER HONOUR: All right, good. Thank you.
104OFFENDER: Thank you.
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