Director of Public Prosecutions v Kelly (a pseudonym)
[2022] VCC 672
•16 May 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICKY KELLY (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE TINNEY |
WHERE HELD: | Geelong |
DATE OF HEARING: | 3 May 2022 |
DATE OF SENTENCE: | 16 May 2022 |
CASE MAY BE CITED AS: | DPP v Kelly (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2022] VCC 672 |
REASONS FOR SENTENCE
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Catchwords: indecent assault of child under 16 years (x3) - sexual penetration of child under 16 (x2) - some offences are course of conduct - One penetration offence aggravated by care, supervision and authority - Offending against 10 to 13-year-old children of partner back in early 1980s - Full admissions including to details not disclosed in complainant’s statement – cooperative - early plea – Worboyes - COVID-19.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Moore | Office of Public Prosecutions |
For the Accused | Ms B. East | Victoria Legal Aid |
HIS HONOUR:
1Ricky Kelly[1], on Tuesday 3 May, you pleaded guilty to five charges laid on the indictment that has been filed in this court, being three charges of indecent assault of a child under 16 and two charges of sexual penetration of a child under 16. The indictment spells out that Charges 2 and 3 are specific charges whereas Charges 1, 4 and 5 are laid as course of conduct charges. For the course of conduct charges, the agreed summary sets out the frequency of that conduct.
[1] A pseudonym
2You have no prior criminal history and nothing committed subsequent to these acts, which took place in the early 1980s. You were between 27 and 30 years of age at the time of the offending and you are now 68, having been born in March 1954.
3You have been in custody since I remanded you at the end of the plea on 3 May.
4The summary correctly sets out the maximum penalties. Charge 2 is aggravated by the child being under your care, supervision or authority and accordingly has a higher maximum penalty, being 15 years' imprisonment. Importantly, the indecent assault charges are punishable by the lower maximum penalty which existed at the time, being five years' imprisonment.
Facts
5Mr Moore appeared to prosecute on the plea, and he relied upon a written summary of prosecution opening dated 3 March 2022, which was marked as Exhibit A on the plea. Your counsel, Ms East, told me that it was an agreed statement.
6In such circumstances, I see no need to set out the full sentencing facts in these, my reasons. I will sentence pursuant to that agreed summary. This was serious offending. That much is conceded. So too the aspect of breach of trust. You were in a relationship with the two girls' mother, Elaine[2], at one point moving in together. The offending occurred in the Warrnambool area. Brittany[3] describes your practice of coming at night into the bedroom that she shared with her sister, Marta[4], to say goodnight and reaching down and cupping her, Brittany’s, breast over the top of the pyjamas. It occurred on many occasions Brittany was 13 at the time and kept it secret. This is a course of conduct charge, so I must sentence in a way that reflects the totality of that conduct. That is the position for any of the course of conduct charges.
[2] A pseudonym
[3] A pseudonym
[4] A pseudonym
7Marta describes a specific act of penile/oral penetration when she was just 10. As she sat on the lounge room floor, she looked around and noticed that your penis was out of your pants, and you took her by the head and forced your penis into her mouth and held her head with both hands for an extended period until you ejaculated into her mouth. Her mother was asleep only some metres away in the bedroom. Charge 2, then, is a specific act but one occurring when Marta was under your care, supervision or authority. It was an unmistakably serious crime.
8The summary at paragraph 8 describes an event that led to the girls and their mother moving out. You were found on one occasion, it would seem, asleep on top of Marta. The family moved back to their home, but the relationship between you and Elaine continued.
9As a result, you were a regular visitor, and Charge 3 was a specific occasion where you came into the girls’ bedroom, laid down on Marta’s bed and placed your hand under the doona and inside her pyjama top, stroking her bare breast. She was 11 or 12.
10Charge 4 is a course of conduct charge pertaining to indecent assaults occasioned by digital penetration of Marta’s vagina. She was between 10 and 13 years of age, and the acts occurred on between three to six separate occasions.
11The final charge is also a course of conduct charge relating to other occasions of penile/oral penetration of Marta occurring at the Allansford address to which the family had moved in 1984. There were two or three separate occasions where you penetrated her mouth with your erect penis, on each occasion for four or five minutes. This was when she was either 12 or 13 years old.
12The police interview took place on 2 January 2021, the same day that Marta had conducted a secretly recorded pretext conversation with you where you had made some admissions. You made detailed admissions in the police interview. I should say that Charges 4 and 5 are based on the admissions that you made in the police interview. I will say more about the significance of that in due course.
13The summary also sets out the listing chronology of the matter before the courts. You have pleaded guilty at the earliest opportunity.
14So much, then, for my short summary of the summary. That is all it is. I sentence pursuant to the more detailed agreed written statement that has been marked as Exhibit A on the plea.
Impact
15There are two impact statements here. Each was read aloud in court. Marta Norris read her own impact statement. Brittany’s impact statement was read aloud by the prosecutor. They were children when you abused them. They are adults now. Marta is 50, Brittany 53. Though I will soon move on to discuss the matters in mitigation raised on your behalf on the plea - this is not all about you. I am sentencing you for these crimes committed upon these children, as they were, crimes that have had a sizeable impact. I do not intend to detail now in these reasons everything that is contained within those impact statements. Rest assured, I take into account those statements. I have read them both again since the plea including over the weekend just gone. Brittany described a childhood that changed when you came into the family’s life. It was not a change for the better, that is for sure. She was scared of you abusing not just her but also her sister. She held the fear that your acts might escalate to other acts, so she mentions fear and anger and anxiety and distress and also a regret that she did not protect her sister. On that score, of course, she should have no regret at all. She was a young girl, and the only person at fault here was you. You have altered the way she feels about men. She has flashbacks and anxiety and has required counselling. She says you destroyed her childhood. Your conduct haunts her all these many years later.
16Marta’s statement goes into far greater detail, and I will mention but some of the matters that she raises. She courageously read the impact statement out aloud before me in court, and it is hard in just a brief summary to do justice to that detailed impact statement. She speaks of the profound burden and loss arising here. She wonders about the life that she might have led absent your abuse, but of course she will never know that life. It cannot be reclaimed. All she knows is that the trajectory of her life was forever altered. She lost her sense of safety and security and her innocence. She worried about being exposed. She had negative thoughts about her sense of self, and confusion and nightmares, as well as difficulty maintaining positive intimate partner relationships. She has been left feeling isolated and with a sense of mistrust in men. She sought some comfort in alcohol abuse. She has had years of counselling and psychologists and medication. This has all come at a financial cost. The emotional cost is of course far, far greater. She believes that you destroyed the essence of who she was. Well, she has regained her voice and has spoken out in 2020 and ponders the question, 'What is the proportionate sentence' for such conduct as yours? Well, that is the question I must address as the sentencing judge in this case. Your crimes have had a vast array of impacts. Marta’s life has been turned upside down and no sentence imposed by me will alter that fact.
17Now, I do not act emotionally or let the impact of these crimes swamp the many other sentencing considerations that I have to take into account. I have to guard against that, and I do, but it is as plain as day that your crimes have had very sizeable impact indeed.
18These statements spell out that impact very eloquently. I must take into account the impact of your crimes and I do.
In Mitigation
19Your counsel, Ms East, conducted the extensive plea on your behalf. She relied upon a written outline dated 1 May 2022 as well as a report from a psychologist, Jeffrey Cummins. There were a couple of small amendments to the outline dealing with the voluntary work and the timing of that activity. She also withdrew one of the Verdins[5] submissions.
[5]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (“Verdins”)
20Ms East placed before me details of your personal and family background as well as your educational and employment history. Also details of your voluntary work with those amendments that I have mentioned. So at Apex from 19 years of age to April of this year, volunteering at primary schools for a period from the late 1980s into the 1990s, not right up until the pandemic. Your counsel made submissions about your lack of any prior or subsequent offending and your favourable prospects of rehabilitation. She made submissions as to the relative seriousness of the offending.
21She relied upon the following matters in mitigation:
· Your early guilty plea in the midst of the global pandemic;
· Your high level of cooperation in making admissions over and above those matters disclosed in Marta’s statement;
· The presence of remorse;
· The application of the sixth limb of Verdins.
22Your counsel conceded the inevitability of a prison term. She argued that if a sentence of no greater than three years could be achieved, that given the age of the offending, that it would be open in such a setting to partially suspend a prison term. I interpose that such an outcome is no longer even a possibility in this court for any offence occurring after 1 September 2013. This offending predated that date and so the abolition of suspended sentences does not apply to my task. She understood one obvious practical difficultly was the need to have a sentence of no greater than three years. She argued that if such an outcome could not be achieved, that a lesser non-parole period be fixed, taking into account the various matters in mitigation.
Prosecution
23The Director of Public Prosecutions of this State, through Mr Moore, was calling for a prison term with a non-parole period. The Crown challenged the application of the sixth limb from that case of Verdins that you heard discussed.
Background
24I turn to your background. I have no reason to doubt the details of your personal and family background placed before me in the written and oral submissions as well as in the report of Mr Cummins. There is simply no point in my restating it all in these, my reasons, so I will provide only a brief sketch.
25You are 68 years of age. You are the middle of three children. You have a younger and an older sister. You had a normal upbringing, with your mother working in a bank, your father as a bus driver. You completed Form 4 or Year 10 and did a motor mechanics apprenticeship. You had a very good work history in that and related areas. You were last employed in about 2004. Your parents are both deceased. You have done a lot of voluntary work, which I take into account in your favour (see paragraphs 14 to 16 as amended). You have no issues with illegal drugs but were quite evasive with Mr Cummins about the extent of any issues with alcohol. I really do not know why. As I have said, you have no prior criminal history and nothing occurring since.
26You had two relationships of significance with members of the opposite sex, a marriage that ended after four years in 1980, and the second relationship being the relationship with Elaine Norris, the mother of Marta and Brittany. I was told that you have had no sexual relationships since that relationship failed, which is really quite unusual. It would seem you live a strange and isolated type of existence. You are on the aged pension and have family support from your sister Darla[6] and her husband Johnny[7], who both attended court on the day of the plea and are joining the hearing by way of Webex today. I was told that your other sister also knows of the offending.
[6] Pseudonym
[7] Pseudonym
27I turn, then, to consider the other matters that have been raised by your counsel.
Guilty plea
28The first of those matters is your guilty plea. It was a plea at the earliest opportunity. Further, you were very cooperative indeed with the police, making full and valuable admissions, even disclosing matters that the police were unaware of. This is worthy of extra sizeable recognition. I note that Charges 4 and 5 are framed purely on your admissions. Doran’s case[8] and other cases spell out why this sort of cooperation is worthy of a sizeable added sentencing benefit. The Court of Appeal said in that case the following:-
'Most importantly, however, the appellant quite voluntarily, without any pressure from any authorities, provided the prosecution with all the evidence necessary to convict him of the majority of the crimes. In my view, the consequences of the appellant's admissions are that they reduce the need for a sentence to personally deter the appellant, they increase the prospect of his successful rehabilitation and they demonstrate genuine remorse for his actions. I would add that I think it important that the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions'. [9]
[8]R v Doran [2005] VSCA 271
[9] Ibid at [14]
29That case and related cases have application here, though of course, as I have said on the plea, you are not in the same position of Doran, who, having been released in relation to one allegation, then rang back the police sometime later and notified police of other conduct relating to other victims which had not even been the subject of complaint or police report. You were being interviewed in relation to allegations made by the two victims and you made admissions, including admissions that went beyond that known by the police. It is still worthy of significant extra recognition. It was highly valuable.
30As a result of your early guilty plea, the time, the cost and the effort of a committal hearing in the lower court or a trial up in this court has been completely avoided. Witnesses have not been required to give evidence. That is important, as it can be and often is a distressing experience giving evidence in this sort of case before a jury. It has been avoided here.
31You have in these various ways, then, facilitated the course of justice. By pleading guilty, you have taken this early responsibility for your offending.
32Your guilty plea is worthy of extra weight for the many reasons set out in the decision of Worboyes.[10] There is a large backlog of cases waiting for a hearing. Your case is not one of them.
[10]Worboyes v The Queen [2021] VSCA 169
33So I take these various matters into account in mitigation.
Remorse
34I turn to the issue of remorse. Your counsel pointed to your guilty plea, the admissions that you made in the pretext conversation, the opinion of Mr Cummins and finally your police interview where you made admissions over and above the details then known to the police, and Ms East argued that there was remorse evidenced here. I have already referred to the case of Doran a short time ago and the impacts that admissions such as those you have made might have in the assessment of remorse. The pretext conversation was strangely lacking in any expression of remorse. I could find no real hint of any apology in that, but to be fair to you, it was a call that had been made out of the blue to you by someone you had not spoken to for many years. Your mind was probably running at a hundred miles an hour. Nor is it suggested by Mr Cummins that you have any great insight or level of empathy about the impact of your crimes. I do not know why you do not. It is very odd indeed that you cannot understand how these acts committed by you could and would be so damaging.
35However, having read all the materials again since the day of the plea, I accept the submission that has been made as to the presence of remorse in this case.
36I take the existence of actual remorse into account in your favour.
Rehabilitation
37I turn now, then, to your prospects of rehabilitation. Those matters are addressed at paragraph 28 of the written submissions. You are 68 years of age. I am sentencing you for crimes committed in the early 1980s in a setting where there is no prior criminal history. Nor have there been any offences committed in the very lengthy period since. You had a good employment record and were, and have been, otherwise, a contributing member of the community with various acts of voluntary work over the years. You call in aid now your past good behaviour and those voluntary contributions. You have family support and you will have stable accommodation upon your release. I was told that aged care was going to be explored in due course. You, unlike many, are actually remorseful and made detailed admissions which provided details of offending the police were otherwise unaware of. I refer again to that case of Doran and the implications of such conduct in the assessment of favourable prospects of rehabilitation and reduction of the weight given to specific deterrence. You have backed up that stance by pleading guilty at the earliest opportunity. You have, over the ensuing years, worked in voluntary capacities which presumably would have provided opportunities for further offending against children, and there is no suggestion that you have so offended. I do note that your connection with Bethany prompted Marta to move forward with her complaint, and one can understand her concerns in that regard, but of course, I cannot make any negative finding as to your role with Bethany or your reasons for being so involved. I cannot convert a positive into a negative. That would not be fair at all.
38Mr Cummins says that the offending to which you have pleaded guilty attracts the diagnosis of hebephilia, that is a sexual attraction to persons who are post pubescent but under legal age. I note that the offending against Marta started when she was just 10. You have, it must be said, limited insight as to the damage that you have wrought (see paragraph 38 and 41 Mr Cummins' report).
39You were very evasive with Mr Cummins as to your alcohol use both present or past (see paragraphs 17 and 47). Ms East could not really explain that stance but provided to the court your instructions on each topic, but it is strange that you were not prepared to expand upon these matters with the expert. However, nothing hangs on that. There is nothing to suggest that alcohol had any role at all to play in this offending. Mr Cummins says that in his opinion it is most likely that the offending was 'situationally motivated and opportunistic'. He often enough employs that phrase in his reports. I do not quite know what he indicates by the use of it. It does not explain the offending at all. If it is to differentiate it from a setting of someone who has gone out into the community or onto the streets to find a victim, well, of course I accept that is not what you did. You found your victim within your home and/or in the course of visits to your partner’s home once they had moved out. That still does not explain why you chose to engage in these serious sexual acts with two girls in a setting of breach of trust. The notion advanced in part explanation by you in the police interview of not getting arousal in the adult relationship with Elaine is a very faint explanation indeed if I may say so. It does not pass muster. Nor is it consistent with your account to Mr Cummins on that score in any event. It cannot and does not explain why you decided to penetrate a 10-year-old child. There is nothing to suggest that you did not know how serious those acts were. So here there is no reduction in your culpability. In my view, there really is still no explanation for the offending. This conduct was actually not out of character in this sense: you were committing these serious acts over some years. Mr Cummins suggests that you have a low future risk of committing a sexual offence against an underage person. I am prepared to accept that opinion. It would seem that you are not resistant to specialised treatment, though Mr Cummins is of the opinion there is no need for such treatment.
40No doubt, the time you will spend in the future undergoing the sentence I will soon impose will serve to deter you if deterrence is needed.
41There is the aspect of you being dealt with so long after these events, and of course I do not ignore that. I have already spoken of the absence of any prior or subsequent offending and the benefits of the ongoing rehabilitation in your life in the very lengthy period that has since elapsed. There is also, though, this not unique feature of you, the offender, living a life without any hint or stain or blemish for all those decades whilst your victims have lived with and no doubt laboured under this secret. No doubt they would have taken some real comfort from acknowledgement and counselling when they were children all those years ago. They have waited more than half a lifetime to be vindicated.
42Having considered these various matters, though, I accept the submissions made by Ms East that you do have good prospects of rehabilitation.
Verdins
43Your counsel argued initially that the fifth and sixth limbs of the case of Verdins were engaged here. As I spelt out in the course of the plea, that case of Verdins is a case from our Court of Appeal spelling out the impact upon the sentencing process of mental health conditions existing either at the time of offence or sentence or both. I hasten to add there is no suggestion of any condition existing at the time of the offending which in any way attracts any of these principles. What was being relied upon by Ms East was Mr Cummins' opinion as to your current state and the impact of imprisonment upon one with such a condition. Unsurprisingly, it is a stressful business coming to court for this sort of matter. You are evidencing symptoms of reactive anxiety and depression (see paragraph 48). I raised my concerns on the plea about the nature of the report and the extent to which it truly engaged either limb of Verdins. It did not, for instance, go into any detail as to how or why there would be an increased burden. Ms East withdrew the fifth limb argument but persisted in the sixth limb argument but recognised the difficulties with that issue as well. It was really founded on paragraph 48 and 49 of Mr Cummins' report. There may well be some deterioration in your mental state when incarcerated. Mr Cummins thinks that very probable. I do not accept that this enlivens the sixth limb of Verdins. It does not rise to that level. Nor is there any real basis to conclude that your condition will make your time in custody more onerous. He does not explain how or why that would be so. In fact, he proffers no opinion as to the extent or significance of any likely deterioration. Yours is a reactive condition. It is, as far as I am concerned, speculative to a degree to assume that the condition will even persist. Your symptoms are reactive to your legal situation (see paragraph 32). In any event, I am not satisfied on the balance of probabilities that the sixth limb of that case is made out here. There is nothing before me to suggest a serious risk of imprisonment having a significant adverse effect on your mental health. I hope it does not, and it may well not.
COVID-19
44Now, no submission was made as to the impact of COVID-19, no doubt owing to the fact that you have not been in custody. It is clear enough to me that the COVID-19 virus and the response to it by those running the prisons has increased the prison burden upon prisoners in the past. You have not been subject to those stresses and strains which have existed over the last couple of years, as of course you have been on bail. Well, that changed on 3 May.
45Things have looked up in recent times in the community and in prisons. Personal visits resumed in March. So things are pretty much getting back to normal in a prison setting, and that coincides with your being sent there.
46As to what lies ahead in the future on the pandemic front, well, it is impossible, really, for me to know. Those whose job it is to run the prisons will be able to reflect on the impact of any ongoing limitations on a case-by-case basis. They will have the power to address any increased burden in your case by way of conferring emergency management days. I cannot know if that will take place or not. I do not proceed on the assumption that it will, as I cannot know, and to take that into account would be to contemplate 'executive action' which is prohibited.
47I do take into account that there might be still some issues thrown up by COVID for prisoners in the months ahead and I take that into account. It is not a large matter at all and involves a fair level of speculation. It is not speculative to think that your time in custody will not be easy in this sense: you are there for the first time at the age of 68. It is your first taste of prison life and it will not be easy.
The Offences
48I turn now to the offences. I see no need to descend again to their detail. I have described the acts and the setting, and the summary goes into greater detail.
49Sexual offences against children have always been viewed seriously by the courts. Marta was aged between 10 to 13 at the time of the offending. That offending has had enormous impact. How could it not, given her age and the acts that you performed, and the relationship that you had, not just with her, but with her mother? Charge 2 and Charge 5 involved unprotected penile/oral penetration in her family home, with you ejaculating on one occasion into the mouth of this 10-year-old girl, having forced your penis into her mouth in the conduct covered by Charge 2. Her mother lay asleep in a room only metres away. Charge 5 is a course of conduct charge, and I sentence having regard to that fact. They were not brief acts. Charge 4 is also a course of conduct charge. That is an indecent assault charge, but it is for conduct which was penetrative. Back in those times, digital penetration was not treated as an act of sexual penetration by way of a specific crime. That changed some years later. It follows, then, that indecent assault back in that day could cover a multitude of differing acts, including touching, even on the outside of the clothing. That is not what I am dealing with here in relation to Charge 4. For that charge of indecent assault, I am dealing with acts of digital penetration on a course of conduct basis. Necessarily, then, it is a serious example of such an offence. The conduct against Brittany was, at least objectively viewed, less serious, though that is not to question the impact of that conduct upon her. So too the touching the subject of Charge 3, being a specific touching of Marta’s breast on that one occasion.
50Acts such as these ones, in the setting of a family relationship, surely must fall at the higher end. There was a relationship between you and Marta and Brittany, and trust vested in you by reason of your relationship with their mother. The conduct against Brittany the subject of Charge 1 and the act of oral penetration against Marta (Charge 2) occurred in the family home, under your roof. You were there together as a family unit. Care, supervision or authority is particularised in relation to Charge 2 owing to your being part of the family unit and having that aspect of trust, so I must not doubly count that feature as a matter of aggravation for that charge. Charge 1 is, though, different. Indecent assault can occur in a variety of settings, and not all of those settings involve a breach of trust. This conduct targeting Brittany plainly did. She was in her own bed, under your roof. Likewise, for Charges 3 to 5, targeting Marta, you were by then a trusted visitor to their house and you used your trusted position to offend against her.
51This was serious sexual offending, and it has had very sizeable impact, as one would expect it to.
Purposes
52I am required to consider a number of matters, including the nature and the gravity of offending, the impact of the crimes and the maximum penalties.
53I have to consider a number of purposes of sentencing and the weight to be given to each purpose in my task. Rehabilitation is one of the purposes of sentencing. Well, of course, I do not ignore that purpose at all. I give it due weight, given my favourable conclusions in that regard, conclusions reached in large part owing to your efforts in the many years which have passed since you offended back in the 1980s and the lack of any other offending. It is, however, not the only purpose of sentencing.
54I must take into account the other purposes of sentencing, including specific and general deterrence, protection of the community, denunciation and punishment. You must be punished justly and proportionately. Punishment is an important purpose of sentencing, and that is so despite the passage of time. I must also denounce your conduct. That is also of importance. Again, the passage of time does not remove the need for strong denunciation by this court. This sexual conduct in relation to these two young girls must be strongly denounced, and I do denounce it. You should be ashamed of yourself, and I believe that you are.
55Then there is deterrence, both general and specific, as well as community protection. I must at least consider the need to deter you from offending in the future. That principle of specific deterrence can be very significantly moderated here, owing to my favourable conclusions as to your rehabilitative prospects and the low risk of reoffence and the absence of any criminal activity in the many decades since this offending. For the same reason, community protection, which would often be an important, if not very important purpose of sentencing, can be very significantly moderated, at least in relation to the first two sentences imposed.
56Those two purposes, specific deterrence and community protection, must surely drop away very significantly in my sentencing task. That just stands to reason. It would be quite different if you had relevant prior or subsequent criminal history or if there was an assessment of you presenting a high or higher ongoing risk. But that is not the position at all. Again, you get the benefit flowing from the detailed admissions (see again the case of Doran).
57There is, however, an alteration of that position in relation to community protection when I come to impose the third sentence and beyond. By that stage, you will fall to be dealt with as a serious sexual offender. The Sentencing Act 1991 marks out the paramountcy of community protection for those particular sentences (see s6D(a)). Absent that provision, it could really make no sense to give community protection much, if any, weight at all in this case.
58General deterrence is, however, in a quite different position. This principle relates to the need to deter other people from offending. It is an important purpose of sentencing for this sort of offending. This court must send a loud message to other individuals in the community who might be minded to commit these sorts of serious offences. Sexual offences against children are abhorrent and they must be actively discouraged by the sentences imposed by the courts. There is nothing at all unusual about a matter taking decades to come to court. We are learning each day that delay in complaint is very much the norm, especially in offences occurring in a family setting, as these did. A loud message must be sent to those who might consider engaging in this sort of serious sexual conduct that you engaged in. General deterrence is an important sentencing purpose in this case, and that much is conceded by your counsel, Ms East.
59I must pay regard to current sentencing practices. That is not a single controlling matter. It is just one of the many matters that I must have regard to. When sentencing for historic offences, as I am here, the term 'current sentencing practices' refers to those practices in effect at the time of sentencing, not those which existed at the time an offence was committed. However, it is slightly more nuanced than that. Use of current sentencing practices must take place alongside an awareness of the maximum penalty that applied at the time of the offending. Caution is called for in using current sentencing practices for an offence or style of offence that now carries a higher maximum penalty than at the time of the offending.
60Further, whilst sentencing practices at the time of the offending are not 'current sentencing practices' for the purposes of the Sentencing Act, equal justice may require a court to consider historical sentencing practices, so far as they can be established, if they demonstrate that a materially lesser sentence would have been imposed for a like offence than current sentencing practice would impose. This is not an inflexible rule, and the practices at the time of offending are only applied if it is reasonably practicable to do so, as changes in a statutory regime and offence maximum may complicate this determination. That is plainly the position in this case.
61There have been many changes to the law since 1984, changes to definitions of what constitutes sexual penetration and to the conduct that might have been dealt with as an indecent assault. As I said earlier, at the time of the acts covered by Charge 4, digital/vaginal penetration was not regarded by the law as an act of ‘sexual penetration’. ‘Sexual penetration’ was defined to apply to other acts but not to those acts. It follows that digital penetration was instead charged as an indecent assault, as here.
62The maximum penalties for indecent assault rose substantially over the years, and the range of conduct at the higher end of that offence has shrunk with the enactment of specific penetration offences with higher maximums. Definitions of ‘sexual penetration’ expanded, as I have said, to include digital penetration and hence removed from the offence of indecent assault any penetrative activity.
63Indecent assault was itself replaced by the offence of indecent act, and that itself has been also replaced by the offence of sexual assault, and for many years, none of those offences could have included any penetrative act such as the ones that you committed the subject of Charge 4 on this indictment.
64So with that in mind, consideration of statistics, which is of very limited use at the best of times, is virtually worthless in this case. Statistics for which crime? With which maximum? I have looked at the Sentencing Advisory Council snapshots for sexual penetration of a child aged between 10 and 16 and the aggravated variant relating to a child who was under care, supervision or authority. There is also an old Sentencing Advisory Council snapshot no.23 for indecent assault, but it seemingly relates to the offence with, by then, the higher 10-year maximum penalty. I have looked at the Sentencing Advisory Council online statistics for each offence. Again, though, there is that same issue, for though the online statistics relate to what is described as the repealed s44 offence of indecent assault, it seems that the data relates at least in part, if not large part, to sentencing at a point in time when there was the higher maximum penalty.
65I have looked also at relevant cases listed in the sections of the Judicial College of Victoria Sentencing Manual, including those dealing with historical matters. That material at 3.5 in the manual includes recent examples of sentences imposed for historical crimes such as these but with similar difficulties in terms of discerning the maximum penalties then in play. I have looked also at cases dealing with sexual penetration of a child over 10 (see 3.4.2 of the manual).
66It is terribly difficult to determine a sentencing practice from over 30 years ago. This style of indecent assault involving penetrative conduct as reflected in Charge 4 would always have been treated as a serious crime. The sexual penetrations the subject of Charges 2 and 5 have likewise always been regarded as serious criminal offences.
67I have the added issue of some of these charges being course of conduct offences and the aggravation of Charge 2 arising from care, supervision or authority. I must have regard to the higher maximum penalty for Charge 2 and the totality of the conduct for any course of conduct offence.
68The fact is, statistics tell me nothing about the finer detail of the particular crime represented in that data, and nothing about the matters in mitigation or aggravation. At the end of the day, what I must do is pass an appropriate sentence in your case, taking into account the matters in mitigation and aggravation in your case. The statistics provide no answer to my task at all. They just do not assist me in this case.
69Nor, for that matter, am I assisted by looking at these other instances of sentences previously passed by other courts upon other offenders for other crimes.
70I must take into account the maximum penalties as applied at the time. I do not lose sight of that fact. It is important here. Lower maximum penalties applied. Those lower maximum penalties would necessarily have led to lower sentences, as a court is required to take into account as one of the considerations, the maximum penalty.
71It is obvious that attitudes have changed over the years to what is the appropriate maximum penalty, but what I must do is pay regard to the maximum penalty as it then existed.
Totality
72I take into account the principle of totality of sentence. I have engaged in a last look at the sentences imposed by the court and the total effect of them in endeavouring to guard against the imposition of a crushing sentence upon you and to ensure that the overall effect is commensurate with your overall criminality. That criminality was serious. You were highly culpable. I have the serious offender provisions of the Sentencing Act which come into play by the time of the third sentence. As a result of those provisions, for the sentences imposed upon you as a serious sexual offender - so from the third sentence and beyond - I must treat the protection of the community as the principal purpose of sentencing. I may impose a disproportionate sentence to achieve that goal, pursuant to s6D(b). I certainly will not be doing that here. Nor does the prosecution suggest that I should consider that.
73In the absence of a direction otherwise, the sentences imposed on the third, fourth and fifth charges would be served cumulatively upon each other and upon other sentences. The presumption of concurrency is quite deliberately removed by s6E of the Act. I do not ignore the serious sexual offender provisions, but I must consider your level of actual risk and I have spoken of that already. What sentence is required to protect the community will necessarily depend upon my assessment of the risks that you actually present, which I find on the materials before me to be low (see the case of RNT[11]).
[11][2009] VSCA 137 at [16]
74This offending, though, was not part of some tightly bound-up single episode on a single day. The offences occurred at different times and of course involved different acts. Charge 1 involved a different victim and with a number of separate acts rolled into that charge by way of a course of conduct. As to Marta, they were each separate criminal acts, no doubt each of them having a role to play in the overall impact caused here. Quite aside from the presumption of cumulation arising from the operation of the serious offender provisions, there would have been a need for cumulation as a matter of general sentencing principle. The serious offender provisions do not remove the need for consideration of totality of sentence. The provisions only modify that rule. Totality is still important here. Plainly, there must be a level of concurrency.
75I must ensure that my sentences reflect the totality of the conduct for the various course of conduct charges.
76Your counsel reminded the court of the principle of parsimony. I need no reminder of that principle. It is fundamental to my task. The court must never impose a sentence which is more severe than that which is necessary to achieve the various purposes of sentencing.
77Sending a person to prison is always a disposition of last resort. Ms East concedes that a term of imprisonment is warranted here, not just that, but one that will require you to actually serve a period in prison. She argues that if a head sentence of three years or less was achievable here, then there would then be at least the ability to consider partial suspension of any such term.
78I do not believe that such an outcome is open here.
79If I was sentencing you to a period of imprisonment for which there could be consideration of suspension, and I am not, I would have been required to consider the matters spelt out in the old s27(1) of the Sentencing Act. A Court must be satisfied that an order suspending the term, either wholly or in part, was desirable in the circumstances. In determining if an order suspending a sentence was desirable, regard had to be given pursuant to s27(1A) of the Act as it then existed, and a court must then consider a number of things, including the nature of the offence and its impact on your victim and whether a wholly or partially suspended sentence would adequately manifest the court's denunciation or adequately deter others, or reflect the true gravity of the offence.
80The fact is, though, this is academic here. I am well satisfied that a sentence in excess of three years is required. There is no ability to suspend, either wholly or in part, a sentence of that dimension.
81Given the dimensions of the head sentence, I am required as a matter of law to fix a non-parole period and I accept that it is appropriate to provide for a decent gap here. I make no assumptions as to whether you will or will not be released on parole. That is not for me to decide. In fact, I am prohibited from speculating in that regard. That decision will rest entirely in the hands of the Adult Parole Board. It will be, I suppose, between you and them.
Sentence
82I move now, then, to pass sentence in this case.
o On Charge 1, which is the course of conduct charge of indecent assault in relation to Brittany, I convict and sentence you to eight months' imprisonment.
o On Charge 2, the specific charge of penile/oral sexual penetration of 10-year-old Marta when you were in a position of care, supervision or authority, so an offence with a 15-year maximum penalty, you are convicted and sentenced to three years, nine months' imprisonment. That will be the base sentence.
§ From this point, you fall to be sentenced as a serious sexual offender.
o On Charge 3, the specific indecent assault against Marta by way of touching her breast, I convict and sentence you to five months' imprisonment.
o On Charge 4, a course of conduct indecent assault charge relating to digital/ vaginal penetrations, you are convicted and sentenced to two years' imprisonment.
o Finally, on Charge 5, the course of conduct sexual penetration charge relating to acts of penile/oral penetration at the Allansford property, I convict and sentence you to two and a half years' imprisonment.
83I observe that ordinarily one might expect that to be the base sentence, and perhaps even comfortably so, given that it relates to a course of conduct of that same conduct referred to in Charge 2 (though at an older age and without care, supervision or authority) and I am dealing with you by this point as a serious sexual offender. However, I have mentioned the Doran line of authority and that this charge was based entirely on your admissions and the fact that my sentence must adequately reflect that fact. So too the sentence imposed on Charge 4.
Base
84The base sentence is therefore the three years, nine months sentence imposed on Charge 2.
Cumulation for Charge 1
85I direct that five months of the sentence imposed on Charge 1 is to be served cumulatively upon the base sentence and the other part concurrent sentences. To that point, then, there is a sentence of four years and two months.
Extent of concurrency Charges 3-5
86I now move to set out the level of concurrency in relation to the matters where you have been sentenced as a serious sexual offender. I will explain the effect of this towards the end, as I think you will probably lose track along the way.
87I direct that:
o four months of the sentence imposed on Charge 3;
o 16 months of the sentence imposed on Charge 4;
o one year, nine months (or 21 months) of the 30-month sentence imposed on Charge 5 will be served concurrently with all other sentences.
88It follows that under s6E of the Sentencing Act, I otherwise direct concurrency to that extent. It is my intention, then, that there be that additional 18 months' cumulation on top of the existing four years, two months to that point.
Total Effective Sentence
89These orders, firstly as to cumulation and secondly as to the extent of concurrency, result in a total effective sentence of five years, eight months' imprisonment.
Non-Parole Period
90I direct that you serve a period of three years before becoming eligible for release on parole.
Section 18 - Pre-Sentence Detention
91You have spent already the period of 13 days in custody by way of pre-sentence detention, and that period is declared as having already been served under this sentence. It will be noted in the records of the court.
Serious Sexual Offender
92I have also sentenced you as a serious sexual offender on Charges 3, 4 and 5, and that fact also is to be noted in the records of the court.
6AAA
93I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have sent you to prison for eight years. I would have fixed a non-parole period in that setting of five and a half years, and that declaration made under s6AAA of the Sentencing Act is also to be entered into the records of the court.
Sex Offender Registration
94You have been sentenced by me in relation to three Class 1 offences and two Class 2 offences under the Sex Offenders Registration Act.
95Upon your release from custody, you must comply with your reporting and other obligations under that Act for the rest of your life.
96Now, I understand in that room there is a document that explains your obligations, and I wonder if you would remove that from the envelope if it is in an envelope, Mr Kelly, all right.
97Now, I have signed that document already. You are going to need to acquaint yourself with that document in due course, Mr Kelly. It is a lengthy document; I am not expecting you are going to do that now. At this stage, all I am doing is I am having it provided to you for you to sign, and by doing so, you will be acknowledging that you have received those explanations as to your responsibilities under the Sex Offenders Registration Act.
98You will see that the Sex Offenders Registration Act imposes a number of conditions upon you. They are serious matters. They include impediments to future employment in a number of areas. There are some serious impediments to your future contact with children. You will really need to familiarise yourself with those matters and get legal advice, if it is needed, in relation to them, for any breach of the Act or your reporting obligations under that Act is itself a serious criminal offence and one ordinarily punishable by a term of imprisonment.
99Now, normally you would be in court, and I would send your counsel down to have a chat to you about these things, but of course you are where you are in prison, Ms East is online, and I am in court with the prosecutor. Ms East, you have, I am sure, seen these documents before. They are very lengthy documents. You know that. All I am really dealing with here is the notification of his reporting obligations. As I say, it is a lengthy document; it goes into all his requirements under the Act. He is not being asked to read it all now. That would just be impossible for anyone to do. He will need to read it in due course and have it explained to him in due course. He is being asked merely to acknowledge, by his signature, the receipt of that notice under that Act. You understand that, Ms East?
100MS EAST: Yes, Your Honour.
101HIS HONOUR: So you have no concerns in that setting? Normally, one would not sign a document that you have not read, but that is what it amounts to. He is signing simply an acknowledgement of his receipt of those explanations. And there are no issues from your perspective in that respect?
102MS EAST: No, there is not, Your Honour.
103HIS HONOUR: All right. So, Mr Kelly, towards the very end of that document, if you would be good enough, then, to sign the relevant portion of that document. As I say, you will need to read it in due course, but this is you simply acknowledging by your signature that you have been given it. If you could sign that document, please.
104OFFENDER: Yes, Your Honour, thank you.
105HIS HONOUR: Thank you. I wonder if the prison officer would be good enough to sign on the relevant portion as well as having witnessed that signature. Yes, thank you very much. Well, now, let me just ask the parties - are there any other matters I need to deal with, Mr Moore?
106MR MOORE: No, Your Honour.
107HIS HONOUR: From your perspective, Ms East?
108MS EAST: No, Your Honour.
109HIS HONOUR: And each of you understand the individual sentences and the nature of the total effective sentence?
110COUNSEL: Yes, Your Honour.
111HIS HONOUR: I know that it is not that easy to follow because I move from cumulation to then the extent of concurrency. Well, look, I will revise these reasons in due course, and they will be provided to the parties. But there is nothing else from either of you at this time?
112MR MOORE: No, Your Honour.
113HIS HONOUR: Ms East, are you - - -
114MS EAST: No, Your Honour.
115HIS HONOUR: Let me just see. Ms East, are you wanting to utilise the link? We can put you off, and you can be the host so that you are in a position to speak with Mr Kelly. Would you want to use the link so that you can at least use that, or are you going to arrange a separate conference? What is the position?
116MS EAST: Your Honour, unless Mr Kelly needs to speak to me urgently, I would prefer to arrange an individual conference with him, which can be done in the next few days.
117HIS HONOUR: All right, all right. Well, I think in those circumstances, then - so, Mr Kelly, you heard that. So Ms East is going to organise a conference in the next couple of days, no doubt to explain what has taken place here today and to discuss with you your rights in relation to this sentence. All right?
118OFFENDER: Thank you, Your Honour.
119HIS HONOUR: Well, in those circumstances, that completes the matter, so I will disconnect the link, then, at this stage, then, thank you.
120MS EAST: As Your Honour pleases.
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