Director of Public Prosecutions v Kelly (a pseudonym)
[2022] VCC 1707
•3 October 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RYAN KELLY (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE GAYNOR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 September 2022 |
DATE OF SENTENCE: | 3 October 2022 |
CASE MAY BE CITED AS: | DPP v Kelly (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1707 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Damaging property – Attempted aggravated burglary - Possession of a drug of dependence
Legislation Cited: Criminal Procedure Act 2009
Cases Cited: -
Sentence:3 years imprisonment suspended on placement on Drug and Alcohol Treatment Order for a period of 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Dearman | Office of Public Prosecutions |
For the Accused | Ms C. Flocke | Giorgianni & Liang Lawyers |
HER HONOUR:
1Ryan Kelly[1], you have pleaded guilty before me to offences contained in two indictments.
[1] A pseudonym.
2Pursuant to indictment no. N10014292 you have pleaded guilty to two charges of damaging property, one charge of attempted aggravated burglary and one charge of possession of a drug of dependence.
3You have also pleaded guilty to associated summary charges which have been uplifted pursuant to s145 of the Criminal Procedure Act, that being one charge of driving a motor vehicle despite police direction, one charge of driving whilst authorisation suspended, and one charge of committing an indictable offence whilst on bail.
4Pursuant to indictment no.N11057305 you have pleaded guilty to one charge of making a threat to kill and the associated summary offences of wilful damage.
5The facts underlying your offending are as follows. The two indictments relate to various victims but by way of background the victims of the attempted aggravated burglary, Adrian[2] and Michelle Thompson[3], were parents of a friend of yours and they have known you for many years. You used play football with their son. Mr Thompson had also, in the past, helped you get a job.
[2] A pseudonym.
[3] A pseudonym.
6You had re-established contact with Michael Thompson[4] towards the end of 2020 and been invited to his wedding but this invitation was withdrawn when your behaviour began to deteriorate and became erratic.
[4] A pseudonym.
7Following the withdrawal of the wedding invitation you arrived at the restaurant and reception area owned and operated by the Thompsons and behaved aggressively towards them and at the time of the offending they were already in fear of you.
8On 26 December 2021 at about 3.26 pm, Theodore Lucas[5], was at his home in Beaconsfield watching the cricket when you, who were unknown to him, rang the doorbell asking him if an Peter Lionel[6] lived there. You then left the property after being told you had the wrong address.
[5] A pseudonym.
[6] A pseudonym.
9A short time later Mr Lucas heard yelling from outside, went to investigate and saw a white tradesman van with plumbing signage on the side and then you standing on the road outside a home on Whitaker Place, which was nearby, shirtless and yelling obscenities. Mr Lucas saw you go to the front door of this address and kick it before leaving. Lucas then rang police.
10James Constantino[7] is the owner of the home on Whitaker Place and he was not at home at the time of this incident. Mr Constantino later checked his CCTV camera and identified you as the offender. He said that you were known to him from an earlier incident and that he believed you resided with your mother in the property behind his. The total repair to Mr Constantino’s door was $453. This offending underlies Charge 1 on the indictment ending in 292, criminal damage.
[7] A pseudonym.
11Later that same day at about 4.40 pm you ran along Shrewsbury Street, Malvern East screaming towards residences on the street. A victim,
Thierry Jonas[8], who was unknown to you at the time, was home and saw you come to his front door. You slammed your hands on the door and shouted, 'Oh you're filming me, are you? I'm going to come back and fucking kill you'. You then drew your finger across your throat to indicate a throat slitting gesture. This behaviour underlies the charge on indictment ending in 305, making a threat to kill.[8] A pseudonym.
12As you left the address you caused Mr Jonas’ letterbox to snap off its wooden base onto the ground and that relates to the summary offence 2, wilfully damaging property.
13At about 5.45 pm that day you were charged and bailed to appear in June at the Melbourne Magistrates' Court.
14On Monday, 3 January 2022 at about 11.30 am you arrived at the restaurant operated by the Thompsons in your white work van which was marked 'Kelly Plumbing'[9]. Mr and Mrs Thompson were present at the time as was the restaurant's groundkeeper.
[9] A pseudonym.
15Mrs Thompson felt shaking as she was in the upstairs office and heard a male voice yelling out, went to the window and saw your van which she recognised as belonging to you. She told her husband and made sure that doors and windows were locked before calling police.
16The Thompsons could hear you yelling that you were going to kill Adrian and that you were going to kill Michael with your bare hands (Adrian being Mr Thompson). You continued yelling this way for about 20 minutes and Mrs Thompson called the groundskeeper and asked him to come inside because she was concerned for his safety as well.
17Mr Thompson and the groundskeeper secured the restaurant and monitored your movements from behind the bar. You sat on the front deck smoking a cigarette, then you walked to the front glass doors and pulled at them. Then after a few seconds you walked to the main wooden door on the northern side of the restaurant and kicked it two or three times. You then went to the rear door and Mr Thompson the groundskeeper moved to the kitchen and saw you trying to kick the door handle off.
18You then walked over to your van and grabbed a large crowbar before returning to the rear door and smashing the door and door handle trying to jemmy the rear door of the restaurant open. Luckily you were unable to get in. These actions underlie Charge 2 on the indictment ending in 292, attempted aggravated burglary.
19You then walked over to the Thompson’s white Mercedes car which was parked in front of your van and using your crowbar smashed the front windscreen before getting in your van and leaving the property. Those actions underlie Charge 3 on indictment ending in 292, criminal damage. Most of these incidents were capture on CCTV footage. Police then arrived at the restaurant and spoke to the Thompsons and the groundskeeper. All three of them were noticeably upset and shaken.
20At 12.35 pm a second police incident unit was heading to the scene when they saw your van travelling south on Gembrook Road. They performed a U-turn and caught up with the van which you were driving, following it on the Healesville - Koo Wee Rup Road before activating the red and blue lights on the police car. They tried to intercept your van as you approached an intersection with Orchard Valley Avenue.
21You initially slowed down and looked as if you were going to pull over before suddenly conducting a U-turn in front of another car which caused it to brake heavily to avoid a collision and you sped off towards Pakenham. Police got a clear look at you in the driver's seat as you passed. They did not pursue you. Those actions underlie summary offence 8, failing to stop vehicle on police request.
22Police conducted checks and confirmed that your driver's licence had been suspended for six months on 7 December 2021. Your driving, therefore, underlies related summary offence 9, driving while authorisation suspended.
23The cost of repairing the damage to the Thompson’s Mercedes was $2,233.20.
24At about 7.10 pm that evening police saw you leaving your house in
Malvern East and stopped you a short distance away saying they wanted to speak to you about the incident at the restaurant. You seemed to panic and ran off. Police then executed a search warrant at your property seizing the car, the crowbar, clothing and work boots matching those worn by you earlier that day as seen on CCTV footage and a snap lock bag containing methylamphetamine which was located in the study. Your possession of that drug underlies Charge 4 on the indictment ending in 292, possessing a drug of dependence25Police re-attended your home in Malvern East the next day and arrested you. You were taken to the Prahran Police Station where, in a record of interview, you made full admissions to both incidents. Police took out personal safety intervention orders protecting Adrian, Michelle and Michael Thompson.
26This matter was resolved at a third committal case conference on 31 May 2022. The committal proceeded by way of a straight hand-up brief and ultimately this matter was listed in the Drug Court on 2 August 2022. It is conceded by the prosecution that this is an early plea.
27The maximum penalty for criminal damage is 10 years' imprisonment or 1,200 penalty units.
28The maximum penalty for attempted aggravated burglary is 20 years' imprisonment of 2,400 penalty units.
29The maximum penalty for possession of a drug of dependence, where it is accepted that the possession is not for any purposes related to trafficking, is one year imprisonment or 30 penalty units.
30The maximum penalty for failing to stop a vehicle on police request is
six months' imprisonment and/or 60 penalty units for a first offence and a licence disqualification of not less than six months.31The maximum penalty for driving whilst authorisation is suspended is 240 penalty units or two years' imprisonment.
32The maximum penalty for committing an indictable offence on bail is 30 penalty units or three months' imprisonment.
33The maximum penalty for making a threat to kill is 10 years' imprisonment.
34The maximum penalty for wilfully damaging property is 25 penalty units or imprisonment of six months.
35I now turn to your personal circumstances. You are now 34 years of age. Your parents raised you on a farm until you were 10 and then your father was removed from the home because of violence he was displaying, in particular to your mother. You have an older sister.
36You told psychologist, Aaron Cunningham, whose report dated 22 June 2022 was tendered on the plea, that your father was constantly angry after being removed from the home. You had little contact with him until you reconnected with him when you were 25. Sadly, your father committed suicide in 2018.
37You lived with your mother and sister in Beaconsfield until you were 24. Then you lived and worked in Darwin for three years on gas mines, returning to your mother's home in 2015. You then moved into rented premises, in Malvern East in 2020, living there until your arrest.
38You attended Macclesfield Primary School and Emerald Secondary College completing Year 10 and then completing a plumbing apprenticeship. You worked for various companies until you began your own business as a plumber in 2020. You have mostly been employed over the years.
39You began smoking marijuana at secondary school and then used ecstasy socially on weekends from about the age of 18. You smoked methylamphetamine or ice on weekends from about the age of 22 to 2015 when you began smoking it on a daily basis. You were able to stop using when you were working but you continued an intermittent pattern of use over the following seven years.
40At the time of this offending, however, you were using ice to the level of about three points to half a gram per day according to what you told Mr Cunningham.
41You have a criminal history and some of it is very concerning. Your prior criminal history begins in 2006 when you were fined for behaving in an offensive manner in a public place. Then in 2018 you were dealt with in the Melbourne Magistrates' Court in December of that year for criminal damage, entering a private place without authorisation and were placed on a community correction order. You breached this order and were dealt with in the Magistrates' Court in June 2019 at which time you were given a months' imprisonment.
42On that same date you were dealt with by the court for recklessly causing injury, making a threat to kill, contravening a personal safety intervention order as well as contravening the community correction order. You received a total effective of 18 months.
43The circumstances of that offending were extremely concerning because they involved your mother's neighbour. There was some dispute over the neighbour's barking dogs and the noise they made and apparently, under the influence of ice, you jumped the back fence and confronted that neighbour with a tomahawk and struck him. Notwithstanding that you were placed in custody and in that time underwent a drug course it appears that on your release from custody you simply resumed ice use.
44On the plea I spoke to you quite forcefully, Mr Kelly, and I hope when you were listening to my summary of the offending today what I said is sinking in. It is my view and it is not a professional view but it is quite clear that ice use is having a psychiatric effect upon you. By psychiatric I mean that when you use ice your behaviour is erratic and indicative of some mental health difficulties of an organic nature.
45You, in this course of offending, attacked people unknown to you and damaged property. You launched a terrifying assault upon two older people who had done nothing but withdraw an invitation to their son's wedding because of what was obviously erratic behaviour by you, understandably because they did not want their son's wedding derailed.
46This was extremely dangerous behaviour particularly in relation to the Thompsons. Thank goodness you did not get inside, who knows what you might have done to them.
47I wish now to turn to the victim impact statement. Mr Thompson wrote the victim impact. He did not wish it read out in court but let me make this clear. In his victim impact statement Mr Thompson notes that his wife, Michelle, is afraid, very afraid he says, when a car comes into the property with an unusual sound or voice. She lacks confidence in greeting customers to view the property to see if they want to use it for functions. That has resulted in reduced bookings.
48Mr Thompson himself is worried that the business is in jeopardy due to the mental stress his wife is showing. She is the front person for the business. He is worried about the effect that this could have on staff. They have sought therapy but it is clear that this is probably a long term effect. Mr and Mrs Thompson are now suffering from post‑traumatic stress disorder inflicted by you.
49In his victim impact statement which is dated March 2022 Mr Thompson talked of the stress that this involved in the busy wedding season. He said his wife, despite the emotional difficulties she is now suffering as a result of your totally unwarranted violent assault upon her, is insisting on keeping up her coordination duties in terms of bookings and overseeing various functions that are held at the restaurant.
50Mr Thompson does not like leaving her alone therefore he has had to take time out of his own service gas appliances business. They have had to upgrade the security as a result of your attack upon them. This cost them $10,000. He described the whole experience as horrendous.
51That is what you did to two perfectly blameless people. That is the effect that ice has on your reasoning and mental processes, Mr Kelly.
52You have been assessed, both by the drug clinician attached to the Drug Court and by the case manager. It was the view of the case manager, Meghan Kew, that you were suitable for placement on a drug and alcohol treatment order. She noted that you have a positive relationship with your mother who attended both the plea where she had to listen to me speaking to you in very harsh terms, along with your sister who I understand is also a prosocial person, overcoming some difficulties in the past but has got her life on track. It was very hard for them to sit there and listen to what I have had to say to you.
53You reported having prosocial cousins and high school friends. You told Ms Kew that even when you were involved in drugs and crime you have never associated with other drug users and you would rather use by yourself.
54You are the respondent in three current supervision orders, the first protecting Trent[10] and Rachelle Isles[11] from 2019 to 2060. It was Mr Isles, it would appear, who was the neighbour you assaulted.
[10] A pseudonym.
[11] A pseudonym.
55You are also subject to intervention orders protecting Megan Rigby[12] and Thierry Jonas between 2022 to 2024. They were the subject of the attacks which are the subject of these proceedings.
[12] A pseudonym.
56Ms Kew notes,
'This occurred following an altercation whereby Mr [Kelly] was heavily substance affected and began verbally abusing the family and placing rubbish on their family car'.
57There are some problems with accommodation, however, I believe we can overcome these. You will be initially placed in emergency accommodation. The court is governed by what is called a gazetted area, all right and that means if you fall outside the gazetted area you cannot reside there while the order is in operation.
58He will not be living in emergency accommodation forever but that is what the government has said must be in place and that is what I have to do. I do not have the power to make an order that is not in those terms, all right, Ms Kelly? Thank you.
59Ms Kew noted of particular concern is the violent nature of Mr Kelly’s offending. Do you get how violent you are?
60OFFENDER: Yes, Your Honour. I understand my behaviour was violent um and totally inappropriate.
61HER HONOUR: Forget inappropriate. It is completely irrational. Forget inappropriate. Inappropriate is a nice neat word.
62OFFENDER: Yeah, I understand it's completely irrational. It's something that I deeply regret doing.
63HER HONOUR: What I want you to understand is the link between ice and what is going on in your head and how you are behaving.
64OFFENDER: Yeah. I do understand the mental health issues that taking ice can do.
65HER HONOUR: Yes. Good. Is doing. Not can do. Is doing to you.
66OFFENDER: Um and I no longer, I made a promise to myself that I'd no longer take - - -
67HER HONOUR: Yes. I said to you on the plea I am sitting in Drug Court, all right? So you will be coming in front of me for the first three weeks. There will be constant testing. You know what is going on. You are someone I am going to be really worried about if you are using.
68OFFENDER: I will not - I will not use.
69HER HONOUR: Because your head has got no control over what it does. You go down a certain path when you use and you have just got to recognise that, all right? It is not going to stop you being placed on the order, you understand that but I said it at the plea and I am saying it now again. I will be watching for this. We will be watching for this. This is what you do when you use. You are in a bit of a different category to some other people who use, use, use and we do not like that but they do not have this sort of semi psychotic reaction to it. All right?
70OFFENDER: Okay.
71HER HONOUR: Good. All right. I just want to say what Ms Kew said because this is important, all right? In a report she said,
'Although Mr [Kelly] was able to intellectually recognise the impact his current offending would have had on the victims his remorse appeared to stem more from how others would perceive him and feelings of embarrassment.'
72Now that sentence particularly caused me concern, not just because of the effect you have on other people but because it seems that, and I know I am labouring it and saying it again and again, because of the effect ice has on you and how you behave. All right?
73She said, 'Nevertheless Mr [Kelly] presents with a strong employment history and supportive prosocial network through his mother.'
74You have a lot to thank your mother for here. 'And it is noted that you've never had the opportunity to engage in something like a DATO.'
75All right. Now let me say this as well, Mr Kelly. I know I sound like I am standing over you and threatening you and I probably am a bit although I am more concerned than anything. But the DATO is important for you not just because of the effect that ice is having on you. But people who get a go, if I can put it that way, on a DATO and who do not make it and then go back to ice use and then offend again leave the court with not much elsewhere to go by means of sentencing.
76So this DATO is really important to you. You are a bloke with a good work history. You have got your own business. Everything actually should be operating pretty well and you are on the verge of destroying everything, all right?
77OFFENDER: Yes, I understand.
78HER HONOUR: Good. All right. You have also been assessed by the clinical adviser. In any event, you were assessed as being substance affected in a way that links to your offending which is another requirement for placement on such an order.
79In sentencing you I take into account the protective factors that I have mentioned in this case, being your prosocial family, your good work history, your early plea which I accept is indicative of remorse.
80The way in which a DATO works is that I sentence you to a term of imprisonment which is suspended on you entering into a Drug and Alcohol Treatment Order. The order has two parts. The first part is the core conditions.
81They are that while you are on the order you must not commit another offence punishable by imprisonment either inside or outside of Victoria. That does not mean you have to be gaoled. That means if you commit an offence for which theoretically at law you could be gaoled, like knocking off a box of matches from Woolworths, that will breach the order.
82You must attend Drug Court when the court requires you to. You have to report to the Melbourne Drug Courthouse within two working days after the order is imposed. That is by Wednesday of this week. You must report to and receive visits from members of the Drug Court team. You must undergo treatment for alcohol and drug dependency as specified by the order by the Drug Court. You must give notice of any change of address at least two clear working days before the change and you must give notice of that to a specified Drug Court officer. You may not leave Victoria without the permission of the Drug Court while you are on the order. You must obey all lawful instructions given to you by the Drug Court team.
83Those core conditions will remain in force for the term of imprisonment that I will impose upon you. All right?
84There are then going to be program conditions. They are that you must submit for drug and alcohol testing as directed. You must submit to detox or other treatment specified in the order as directed. You must attend vocational, educational and employment programs as directed. You must submit to medical, psychiatric and psychological treatments as directed. You must reside at a place directed by the Drug and Alcohol Treatment Centre until further order.
85I am sorry. I could not see here, is there to be - I do not know whether there is going to be a curfew in this case. Can you have a look please for the document? I do not seem to have documentation. I have got two management reports because there are two indictments but I have not got the clinical.
86MS DEARMAN: I can email it to Your Honour's associate.
87HER HONOUR: We should have it. I should have picked up that I did not have that. You are not to use a drug of dependence without lawful authorisation. You are to abstain from alcohol, I think. Anyway, what I will do, however, I will turn now to the sentencing. All right?
88So in relation to the indictment ending in 292. Charge 1, you are sentenced to four months' imprisonment.
89Charge 2, attempted aggravated burglary, you are sentenced to two years' imprisonment.
90Charge 3, you are sentenced to nine months' imprisonment.
91Charge 4, you are sentenced to three months' imprisonment.
92In relation to summary charge 8, failing to stop a motor vehicle when directed by police, you are sentenced to three months' imprisonment. Also your licence is cancelled and you are disqualified from obtaining any further licence for a period of six months.
93In relation to summary charge 9, drive whilst authorisation suspended, you are sentenced to one months' imprisonment.
94On summary charge 11, committing an indictable offence on bail you are sentenced to one months' imprisonment.
95The base sentence will be the sentence imposed on Charge 2, two years.
96I order that five months of the sentence imposed on Charge 3 and one month of the sentence imposed on Charge 1 be served cumulatively to the sentence imposed on Charge 2. That gives a total effective sentence of two years and six months.
97In relation to indictment ending in 305, threat to kill, you are sentenced to 10 months' imprisonment.
98In relation to summary charge 2, wilful damage, you are sentenced to
two months' imprisonment.99I order that six months of the sentence imposed on Charge 1 on indictment ending 305 be served cumulatively to the sentence imposed in indictment ending 292, giving a total effective sentence of three years in relation to both.
100What is the PSD please?
101MS DEARMAN: It's 272 days, Your Honour.
102HER HONOUR: I declare that 272 days of this sentence has been served by way of pre-sentence detention. Now what that means is, I do not, when I put someone on a DATO, impose a minimum term. That only comes up if you breach the order but that three years is suspended on your entering the Drug and Alcohol Treatment Order. All right?
103OFFENDER: Yeah.
104HER HONOUR: Pursuant to 6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of three years and nine months and ordered that you serve a minimum term of two years and 10 months. All right.
105Now have you we got that other report? Thank you. Thank you very much. There is also a curfew condition which will be imposed between 9 pm and 6 am.
106Now let me just see. Again you were found to be appropriate for placement on a DATO in terms of the appropriate link between your offending and your drug use. It being noted by the clinical adviser of the Drug and Alcohol Treatment Court, Adrian Papworth, that you have no history of drug treatment or drug support service engagement. I note that all you have ever had really is a drug course that you did in gaol which clearly did not work at all in terms of how you behaved when you go out.
107MS DEARMAN: I have instructions from the office that the gazetted area is done with after the directions hearing. What has been raised in the prosecution submissions is the concerns of his mother's address on the basis that there seems to be issues with the neighbours behind but it's a matter for
Your Honour.108HER HONOUR: In that case, he is to reside with his mother at Beaconhill Drive in Beaconsfield.
109HER HONOUR: Yes. Can I just say something to you that I sometimes say to people about my own experience when I was defence counsel? And that is, I used to act for blokes who could not stay out of a car. They might as well have done an armed robbery, they got so much gaol time. So if you get caught for drive whilst disqualified while you're on this order your chances of going in are really high. The court's got more discretion around something like an armed robbery than it has around driving offences. Do you understand me?
110OFFENDER: Yes.
111
HER HONOUR: I'm sure your counsel will make sure that that message gets through. So it's going to be hard for you. You've lost your licence for
six months. You're not going to be able to work. You're going to be living at home and you're going to be catching the train virtually every day.
112I'm particularly saying that because you've got a long way to travel, you know, and you're someone who should do well on this order. You've got a lot of prosocial things in place that many, many people haven't.
113HER HONOUR: Good. We'll be meeting on Wednesday.
114OFFENDER: Okay.
115MS DEARMAN: As Your Honour pleases.
116MS DEARMAN: Thank you, Your Honour.
117HER HONOUR: Thank you. I thank counsel very much for their assistance in this matter.
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