Director of Public Prosecutions v Kelly (a pseudonym)

[2022] VCC 1133

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN KELLY (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	26 April 2022, 6 June 2022 and 8 July 2022
DATE OF SENTENCE:	18 July 2022
CASE MAY BE CITED AS:	DPP v Kelly (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1133

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – theft – trafficking in a drug of dependence – possession of a drug of dependence – possession of a loaded firearm in a public place – prohibited person possess imitation firearm – possess trafficable quantity of firearms – intentionally destroy property – dealing with property suspected of being the proceeds of crime – commit indictable offence whilst on bail – possess unexplained personal property – plea of guilty – rehabilitation

Legislation Cited:           Sentencing Act 1991 (Vic) ss 18X
Cases Cited:                   Gregory v The Queen [2017] VSCA 15

Sentence:Drug and Alcohol Treatment Order, with a custodial part of 46 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Watson	Office of Public Prosecutions
For the Accused	Mr M. Brogden	Michael J Gleeson & Associates

HIS HONOUR:

1Benjamin Kelly,[1] you have pleaded guilty to:

·        two charges of Theft (Charges 1 and 2), for which the maximum penalty is a term of imprisonment of 10 years;

·        three charges of Trafficking in a Drug of Dependence (Charges 3-5), for which the maximum penalty on each is a term of imprisonment of 15 years;

·        four charges of Possession of a Drug of Dependence (Charges 6-9), for which the maximum penalty is a term of imprisonment of one year;

·        one charge of Possession of a Loaded Firearm in a Public Place (Charge 10), for which the maximum penalty is a term of imprisonment of 10 years;

·        one charge of being a Prohibited Person in Possession of Imitation Firearms (Charge 11), for which the maximum penalty is a term of imprisonment of 10 years and I note that is a rolled-up charge;

·        one charge of Possession of a Traffickable Quantity of Firearms (Charge 12), for which the maximum penalty is a term of imprisonment of 10 years; and

·        one charge of Intentionally Destroying Property (Charge 13), for which the maximum penalty is a term of imprisonment of 10 years.

[1] A pseudonym.

2You have also pleaded guilty to related summary offences of:

·        dealing with property suspected of being the proceeds of crime (Summary Charge 15), for which the maximum penalty is two years’ imprisonment;

·        committing an indictable offence whilst on bail (Summary Offence 33), for which the maximum penalty is three months' imprisonment; and

·        possession of unexplained personal property, (Summary Offence 53), for which the maximum penalty a term of imprisonment of 12 months.

3Tendered as Exhibit 1 on the Determination Hearing was a Summary of Prosecution Opening dated 25 January 2022, setting out the agreed facts of your offending. In brief, the circumstances are as follows.

4On 27 May 2021, you contacted Kimberley Jones[2] through a dating application and arranged for her to meet you at Room 107 of the Golden Pebble Hotel at 500 Boronia Road, Wantirna.  After engaging in consensual intimacy, and whilst she was still in the room preparing to leave, you removed several items from her backpack.  You took photos of her ID cards and took approximately $70 from her wallet and then handed back her backpack and purse.  She described being in fear of you due to your demeanour.

[2] A pseudonym.

5On 29 May 2021, you went to ‘Camping Adventures’ at 31 Yazaki Way, Carrum Downs.  You drove a Mercedes G-Wagon and an unknown co-offender drove a white Ford Ranger.  CCTV captured you pulling open the gate to gain entry to the premises.  You hooked the G-Wagon to a camper trailer and drove away.  You then returned in the same car without the camper trailer.  You connected to a second camper trailer and again drove away with the trailer  attached (Charge 2).  Crime scene officers later attended the scene and found fingerprints belonging to you.

6On 2 June 2021, police saw a Mercedes G-Wagon bearing the same licence plates as the car driven by you on 29 May parked in a carpark in Bayswater. They observed you going to and from the vehicle.  Also parked in the carpark was your Ranger vehicle and a camper trailer. You were arrested and searched, and you admitted that you had a sawn-off shotgun and an assortment of drugs in your vehicle. You also told police that you had $10,000 in cash in the car.  A pat search was conducted upon you and an access card and ice pipe were located on your person.  An amount of cannabis was located in the rear driver’s side door of the car.

7Upon searching the Mercedes, police found a wolf-brand backpack containing various drug of dependence.  The vehicle was searched and following items were located:

·        $10,545 in cash in a black Adidas bag (Summary Charge 15);

·        $695 in cash and a bank card in your name (Summary Charge 15);

·        a black balaclava;

·        a black wallet containing a drivers licence in your name;

·        a loaded sawn-off shotgun with two shells (Charge 10); and

·        a Samsung phone.

8Police later confirmed that the car you were driving was stolen and that it matched the Mercedes G-Wagon that was identified at ‘Camping Adventures’ (Summary Charge 53).  The trailer was searched and a black automatic firearm was located, along with another shotgun. Police also found various
gas-powered firearms, magazines, a homemade firearm, a sawn-off .22 calibre rifle and identification documentation in your name (I note that Charge 2 on the indictment relates to the camper trailer that was not recovered).

9Upon seizing your mobile phone, the police located photographs and message exchanges indicating:

·        trafficking in several drugs of dependence;

·        photographs of the firearms and you posing with them;

·        photographs of the Mercedes G-Wagon and camper trailer; and

·        messages regarding the sale of the Mercedes G-Wagon.

10The total amount of drugs seized was:

·        38.2 grams of Methylamphetamine (Charge 3);

·        52.5 grams of Pentylone (Charge 4);

·        278.3 grams of MDMA (Charge 5);

·        226.9 grams of Cannabis L (Charge 6);

·        0.4 grams of Cocaine (Charge 7);

·        47.1 grams of 1,4-Butanediol (Charge 8); and

·        1.4 grams of Amphetamine (Charge 9).

11Ballistic analysis confirmed the presence of one 8mm Gel Ball calibre LDT Warinterest pistol together with six 8mm Gel Ball calibre guns (Charge 11).  Police also found a 12-gauge single barrel shotgun, a 6mm Airsoft Calibre Air pistol, a .22 Long Rifle and a homemade receiver (Charge 12).

12You were taken to Ringwood Police Station and interviewed.  You stated that you had started using and selling drugs due to lockdown and being unable to pay for living expenses.  At the conclusion of the interview, Constable Donoghue left the room momentarily.  Upon his return, he found you had broken the interview discs into little pieces in his absence (Charge 13).  You were remanded in custody. 

13I note that at the time of this offending you were on bail for matters before the Dandenong Magistrates’ Court.  The matter resolved and proceeded by way of straight hand-up brief.  On 31 January 2022, the matter was referred into the Drug and Alcohol Treatment Court and the Determination Hearing was finalised on 8 July 2022.  Yours was an early plea of guilty.

14Exhibit 3 on the Determination Hearing was a Clinical Advisor Report of Adrian Papworth, dated 5 April 2022, and Exhibit 4 was a Case Management Assessment Report of Chloe Reese, dated 8 April 2022.  Exhibit 10 was an Addendum Case Management Report, prepared by Cherise Donovan.  Also filed was a report of Jeffrey Cummins, psychologist, dated 26 April 2022, in support of an earlier bail application (Exhibit 6JB) and a report of Dr Hemlata Ranga, Psychiatrist, dated 13 July 2015, prepared for an earlier court appearance of yours (Exhibit 9JB).  Together these reports set out your personal history, identified your challenges, your substance abuse and your forensic history.

15I turn now to your personal circumstances.

16You were born in April 1982. You are now 40 years of age and were aged 39 at the time of this offending.  You were born in South Australia and came to live in Victoria at the age of five.  Your upbringing has rightly been described as “significantly dysfunctional.” You experienced severe childhood dysfunction and childhood sexual abuse.  Your mother had, herself, been a victim of childhood neglect and trauma at the hands of her parents, and it seems that such was the childhood that she visited upon you.

17Your birth father abandoned you and your mother at the time of your birth.  You have never known him.  Your mother then re-partnered with a man who was a chronic perpetrator of family violence. You were his victim and from an early age you would be sent to live temporarily with your maternal grandmother to avoid his beatings.  You were brought to Victoria by your mother when you were five, along with your younger sister Ariel.[3]  Once in this State, there were further men in your mother’s life who were violent towards both her and you.  Not surprisingly, you began to display behavioural problems at a very early age. 

[3] A pseudonym.

18Family services frequently intervened and throughout your childhood and early adolescence you were placed in multiple different foster families.  There is at least one documented account of a traumatic sexual assault committed against you when you were a child.  I understand that when you were aged 15 you did have some permanence with a family, where you were able to feel settled and that you belonged.

19You attended multiple high schools due to the frequent change in your foster care arrangements.  You struggled academically, with a reported history of school refusal and significant anxiety in relation to schooling.  Your adolescent rage required psychiatric care from outpatient adolescent psychiatric services.  You left school during Year 10. 

20Throughout your life, and when not too affected by drug dependence, you have demonstrated a good work ethic.  You have worked variously as a baker, a real estate agent, running a car detailing business and as a metal recycler.

21You met your first partner when you were aged 17 and had a daughter, Ella,[4] who is now in her 20s.  You met your second significant partner when you were aged 28 and had two further children, Amy[5] and Brooke,[6] from that relationship.  I understand that you have remained in contact with your children and, when not drug affected, have been described as a “good dad”.  In 2018, you began a lasting friendship with Isabel Watkins, who remains a support for you.

[4] A pseudonym.

[5] A pseudonym.

[6] A pseudonym.

22When in custody in 2016, you were commenced on anti-depressant and
anti-psychotic medication due to your presenting with symptoms of major depression and post-traumatic stress..  Upon release from custody in 2016, you co-owned a tattooing business in Bali and fully owned a landscape, gardening and excavation business in Melbourne.  You divided your time between the two businesses and worked hard.  Those businesses collapsed amid the COVID-19 pandemic, leading you to return to polysubstance drug abuse.  You became completely immersed in that lifestyle, once again, and it was against that background that these offences were committed.

23You commenced using illicit drugs from age 12 to 13.  You started drinking alcohol and using illicit drugs at the tender age of 13.  Over the years, your substance abuse has escalated, although you have managed significant periods of abstinence, including a four-year period following your release from prison in 2016. 

24At the time of your arrest, you report using between 3 and 5 grams of methamphetamine daily (with no intravenous use) (Exhibit 3).  You also reported smoking 0.5 grams of heroin every second day, to “help you sleep,” and using multiple other drugs of dependence when available (Exhibit 3).  You identify methamphetamine and cannabis as your primary drugs of concern.

25You reported using illicit antidepressant and antipsychotic medication in custody when first remanded in relation to these matters, but have since been prescribed Agomelatine for treatment of your major depressive disorder.  You also report occasional use of sublingual buprenorphine, but in small amounts. 

26In 1997, you were given probation by the Children’s Court.  In the intervening 25 years, you have been dealt with by means of fines, community-based orders and terms of imprisonment, both suspended and immediate, for multiple driving, dishonesty, weapons and firearms offences, threats and criminal damage, carriage service, possession and trafficking drugs of dependence, family violence and Bail Act 1977 (Vic) offences; a comprehensive set of prior offending, Mr Kelly. You have breached Community Corrections Orders and you have had suspended sentences restored. You have not been able to comply with past opportunities given to you by the courts.

27Most relevantly, in July 2015 you received a total term of 21 months’ imprisonment for trafficking various drugs of dependence, including methylamphetamine and MDMA, and various firearm offences, including carrying a loaded firearm in a public place; a chilling echo of these current offences. 

28Whilst you do not fall to be sentenced today for matters that have already been dealt with by the courts, your prior criminal history impacts my assessment of the need for specific deterrence, community protection, your prospects of rehabilitation,  your moral culpability, and upon the appropriateness of a Drug and Alcohol Treatment Order (DATO) in your case.

29Your presentation to Mr Papworth was consistent with a severe mental health disorder.  You reported very high levels of anxiety and suicidal ideation.  You demonstrated to Mr Papworth some insight of the impact of your drug use and offending upon your family, stating that:

“I feel that this drug court order is my last shot.  If I get out after I do the time, I won’t have the support from the get-go, and the accountability”

that you might have on a DATO.

30Mr Papworth was of the opinion that you would have satisfied the diagnostic criteria for stimulant use disorder, sedative, hypnotic and anxiolytic use disorder and cannabis use disorder at the time of the alleged offending.  Further:

“The treatment and supervision component of a DATO would be an appropriate intervention to address your substance use disorders, and that there are no significant concerns regarding your capacity to participate in such an order.”

31Ms Reese (Exhibit 4), whilst acknowledging your history of substance dependency and mental ill-health, was of the view that your offence pathway, your entrenched criminal belief system, your unsuitable accommodation and your forensic needs, when taken together, outweighed the therapeutic benefits that could be implemented or provided by the Drug and Alcohol Treatment Court.  She concluded:

“The assessor does not dismiss his engagement and potential receptiveness to future treatment.  However, his offence pathway has contributed to further community-based harm.”

32It is to be noted that when Ms Reese wrote her report, she had been unable to speak to Ms Isabel Watkins, with whom it was intended that you should live and who gave evidence at the Determination Hearing.

33I requested a further report (Exhibit 10) and the author, Ms Donovan, had an opportunity to make contact with Ms Watkins.  Ms Donovan noted the value of the support being offered to you by Ms Watkins, a woman who had worked in the Criminal Justice System, who would be aware of your obligations, and who was providing an address for you.  Ms Donovan concluded:

“Should Mr [Kelly] be sentenced to a DATO, this accommodation (with Ms [Watkins] in Carrum Downs) is deemed as appropriate to stabilise Mr [Kelly] on the DATO.  Whilst the location and distance from the court does pose an issue, the benefits of Mr [Kelly] residing with Ms [Watkins], as a prosocial and protective factor for Mr [Kelly] outweighs the distance barrier.”

34Ms Watkins gave evidence at the Determination Hearing and spoke of your good qualities, your work ethic, and your love for your children.  She has worked in the Criminal Justice System and maintained her readiness to support you, at least in early stages of any Order, in attending appointments and in complying with conditions.  She is a continuing and impressive support for you today.

35The particular purposes of a DATO are:[7]

(a)   to facilitate the rehabilitation of the offender participant by providing a judicially-supervised, therapeutically-oriented, integrated drug and alcohol treatment and supervision regime;

(b)   to take account of the offender participant’s drug or alcohol dependency;

(c)   to reduce the level of criminal activity associated with drug or alcohol dependency; and

(d)   to reduce the offender participant’s health risks associated with drug or alcohol dependency.

[7] Sentencing Act 1991 (Vic), s 18X(1).

36I do note that the quantity of drugs and the variety that you were taking, Mr Kelly, is not a recipe for a good, healthy and active old age or life beyond that which you have already lived.

37Mr Brogden, on your behalf, submitted that notwithstanding the evident challenges, such a disposition was appropriate in your circumstances and in the circumstances of this offending.

38Mr Brennan, on behalf of the Director, accepted your dependence and its contribution to your offending and, whilst not seeking to strenuously oppose your placement on the Order, did express perfectly legitimate concern and caution as to the capacity for an Order to manager your risk to the community.

39Mr Kelly, those of us who sit in the criminal courts day after day are aware of this simple truth: drugs are tearing the heart out of our community.  Quite simply, we are losing a generation. Those who participate in this evil trade can expect to be severely punished, if and when they come before the courts. What might start out as a fun Saturday night, what might be regarded as recreational, and as consumption that can be controlled, can quickly spiral into the horrors of addiction. In that horror, many lose everything, including their lives.  Your own lived experience must show how close you have come to losing everything.

40The trafficking offence to which you have pleaded guilty is a serious offence, as is clear from the maximum penalty of 15 years’ imprisonment which Parliament has seen fit to impose.  Quantity, role, the duration of offending and the motivation for the offender’s involvement are all important indicators of offence seriousness.[8]  It is clear to me that you were engaged in your own business of selling onward drugs of dependence for profit, both to feed your own dependence and to service your other material needs.

[8] See Gregory v The Queen [2017] VSCA 15, 2 [24].

41As to Charges 10, 11 and 12 on this Indictment; you had a loaded shotgun in the vehicle that you were treating as your own, and further firearms capable of being adapted for use were located, together with a trove of imitation firearms.  I was told that for you this “went with the territory” of being a drug dealer and that your own drug use fed your paranoia and led you to feeling the need to protect yourself. 

42The imitation firearms (gel blasters) were acquired by you interstate and brought by you into this jurisdiction where, it was said, you did not know that their possession was unlawful; ignoramus lex non excusat, an old principle that says ignorance of the law is not an excuse, Mr Kelly.  Howsoever that may be, the law serves the community interest in maintaining proper systems for the licensing and regulation of the possession, use, disposal and registration of firearms.  It is designed to protect the community against the risks that come with the accumulation of weapons illegally and the difficulty in the detection of those who choose to do so.  In any firearm offence, sentencing purposes of general deterrence and specific deterrence have very important roles to play.

43The theft against Ms Jones was impulsive.  After a moment of shared intimacy, you made her feel unsafe by your actions and robbed her of important personal items.  Your offending against her was callous in the extreme.  The theft of the camper vans suggests, in my view, an organised enterprise, targeting the business premises.  The damage to the Record of Interview recording discs demonstrated, quite simply, a contempt for authority and also a touch of toxic male bragging in the way that you taunted the officer when he came back into the interview room. 

44In sentencing you, I must have regard to a range of different factors.  I must give effect to the principle of general deterrence, that is to deter others from behaving as you did, and to specific deterrence, that is to deter you from ever repeating such offending.  I must consider the need to protect the community.  I must express the community’s denunciation of your conduct.  I must take into account the effect of your crimes upon the community and have regard to current sentencing practices and to the statutory maximum penalties for the offences to which you have pleaded guilty.  I must ensure, as far as possible, that you are rehabilitated and reintegrated into society.  In short, I must try to balance your personal circumstances with the circumstances of your offending.  I must also pass no greater sentence than is necessary in all the circumstances of the case as I find them to be.

45All of these sentencing purposes have work to do in your case.  There is a clear need to send a message to anyone tempted to traffic in methylamphetamine, or any drugs of dependence, and to possess firearms unlawfully, that if they come before the courts they will be punished.  Both specific deterrence and protection of the community loom large in your case.  However, if the Court is considering making a DATO, then your rehabilitation and the protection of the community, that can be achieved through that rehabilitation, have greater importance than those other sentencing purposes.[9]

[9] Sentencing Act 1991 (Vic), s 18X(2).

46I have thought long and hard about your case, Mr Kelly. However, on all the material in front of me, I am satisfied on the balance of probabilities that:

·        you are dependent upon methylamphetamine and cannabis;

·        your dependency contributed to the commission of the offending in front of me;

·        otherwise it would be appropriate to impose an immediate sentence of imprisonment of no more than four years; and

·        that you are not charged with offending nor are you subject to any order that would make you ineligible for a DATO.

47It is clear on the material in front of me, including the material that was subpoenaed, that your childhood experiences have left an indelible and lasting mark upon you.  You have been diagnosed variously with ADHD, major depressive disorder and complex PTSD.  In the past you have reacted to the challenges that life throws up, with reactions of anger and returning to familiar behaviour, such as trafficking and offending, rather than considered responses.

48Having made enquiry of our Clinical Advisors, I am satisfied that your mental health can be managed with strict conditions, which will be reviewed in the community.

49You have demonstrated an ability to maintain significant relationships, and you have successfully parented when you have not been separated from your family by your drug driven offending and subsequent incarceration.

50The evidence of Ms Watkins speaks of the many good qualities of the man behind the criminal record.

51Your guilty plea brings with it the utilitarian benefit of saving the community the time and the cost of a trial and it brings particular benefit in this time of the COVID-19 pandemic, which the Court of Appeal has said must be recognised by sentencing Judges.

52You have in the past managed considerable periods of abstinence, most relevantly between 2016 and 2020, when you have worked hard and established yourself in legitimate businesses.  You demonstrated in the past the capacity to rehabilitate yourself and, with the benefit of the intensive and structured support that a DATO can provide, there are good prospects for your rehabilitation.

53I am prepared to grant you the opportunity to rebuild the life that you had. Really, Mr Kelly, you have got to make a decision at the age of 40.  You are no spring chicken.  Your choice now is to decide whether you are going to live the rest of your life, that which is left to you, as a victim, or putting your past behind you and saying, “You know what, I don't want to be defined as a victim anymore, I want to be a useful member of the society”.  So the choice is entirely yours, Mr Kelly.  If you do not make a change, there is no mystery as to your future: you will be on the street with no hope and no teeth, should you be fortunate to live much longer.  So the choice is very stark.

54On Summary Charge 15, you are convicted and sentenced to a term of imprisonment of 100 days.

55On Summary Charge 33, you are convicted and sentenced to a term of imprisonment of 30 days.

56On Summary Charge 53, you are convicted and sentenced to a term of imprisonment of 100 days.

57I order that 10 days of the sentence on Summary Charge 33 and 50 days of the sentence on Summary Charge 15 run cumulative to each other and cumulative to the sentence on Summary Charge 53. That makes a Total Effective Sentence of 160 days. That has been served by way of pre-sentence detention.

58On Charges 1 to 13, you are convicted and placed upon a Drug and Alcohol Treatment Order (DATO).

59A DATO has two parts: the treatment and supervision part and the custodial part. The treatment and supervision part itself has two parts, which are as follows.

60The core conditions, which are that:

(a)   you must not commit, whether in or outside of Victoria, another offence punishable on conviction by imprisonment during the time the Order is in force;

(b)   you must attend Drug Court when required by the Court to do so; 

(c)   you must report to the Melbourne Drug Court House within two clear working days after the Order is imposed; 

(d)   you must report to and accept visits from members of the Drug Court;

(e)   you must undergo treatment for alcohol and drug dependency as specified in the Order or by the Drug Court;

(f)    you must give notice of any change of address, at least two clear working days before the change, to a specified Drug Court officer;

(g)   you are not to leave Victoria without the permission of the Drug Court; and

(h)   you are to obey all lawful instructions from the Drug Court Team. 

61The core conditions will operate for 46 months, or until further order.

62The program conditions, which are that: 

(a)   you must submit for drug and alcohol testing, as directed; 

(b)   you must submit to detoxification or other treatments specified in the Order, as directed;

(c)   you must attend vocational, educational and employment programs, as directed;

(d)   you must submit to medical, psychiatric and psychological treatment, as directed;

(e)   you must not associate with Kimberley JONES;

(f)    you must reside at [address omitted] Carrum Downs, for the duration of the Order or until further Order; 

(g)   you are subject to a curfew that you must remain at [address omitted] Carrum Downs between the hours of 9:00 pm and 6:00 am, which is required until further order;

(h)   you must comply with an exclusion zone of the suburbs of Ringwood and Noble Park;

(i)    you are not to use a drug of dependence without lawful authorisation;

(j)    you are to abstain from alcohol;  and

(k)   you are to do or not do anything else that the Drug Courts consider necessary or appropriate concerning:

(i)your drug and alcohol dependency; and

(ii)the personal factors that the Drug Court considers contributed to your criminal behaviour. 

63These program conditions will operate for two years, or until further order. 

64The custodial part of the DATO is the term of imprisonment that I would have imposed had I not placed you on a DATO, and it is a term of imprisonment of 3 years and 10 months. That is made up as follows:

·        Charge 1, you are sentenced to a term of imprisonment of six months;

·        Charge 2, you are sentenced to a term of imprisonment of 10 months;

·        Charges 3, 4 and 5, you are sentenced to an aggregate term of imprisonment of 24 months. That is the base sentence.

·        Charges 6, 7, 8 and 9, you are sentenced to an aggregate term of imprisonment of eight months.

·        Charge 10, 11 and 12, you are sentenced to an aggregate term of imprisonment of 23 months.

·        Charge 13, you are sentenced to a term of imprisonment of five months.

65I order that two months of the sentence on Charge 1, four months of sentence on Charge 2, three months of the aggregate sentence on Charges 6, 7, 8 and 9, 11 months of the aggregate sentence on Charges 10, 11 and 12, and two months of the sentence on Charge 13 run cumulative to each other and cumulative to the aggregate sentence on Charges 3, 4 and 5. That makes a Total Effective Sentence of three years and 10 months

66I declare that you have served 251 days of Pre-Sentence Detention.  That is the agreed 411 days, minus 160 days, which is the term of imprisonment that I have sentenced you to on those summary charges, which leaves 251 days.

67Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), although it is a somewhat artificial exercise, had you not pleaded guilty, you would have been sentenced to a Total Effective Sentence of five years, with a
Non-Parole Period of three years and eight months.

68One thing I have not asked, Mr Kelly, is whether you agree to being placed on a DATO? 

69OFFENDER: I agree, Your Honour.

70HIS HONOUR: You also waive all rights of confidentiality of communication which is between, on one part, the Drug Court and everyone who works for it and, on the other part, all other treatment providers and government agencies, authorities and departments.

71OFFENDER:  Yes, Your Honour.

72HIS HONOUR: Now, I have two forfeiture orders and one disposal order, Ms Watson?

73MS WATSON:  Yes, Your Honour.

74HIS HONOUR:  Now, Mr Brogden, has the schedule been checked?  No issue?

75MR BROGDEN:  No issues, Your Honour.

76HIS HONOUR:  All right.  I will stand down.

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