Director of Public Prosecutions v Lees

[2024] VCC 586

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-23-00914

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYEL LEES

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2024
DATE OF SENTENCE:	1 May 2024
CASE MAY BE CITED AS:	DPP v Lees
MEDIUM NEUTRAL CITATION:	[2024] VCC 586

REASONS FOR SENTENCE

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Subject:Plea - sentencing

Catchwords:          Aggravated burglary

Legislation Cited: 

Cases Cited:

Sentence:53 days’ imprisonment (time served)

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Hogan	Office of Public Prosecutions
For the Accused	Ms H. Edwards	Victoria Legal Aid

HIS HONOUR: 

1Kyel Lees, you have pleaded guilty to an offence of aggravated burglary which took place on 22 March 2022.  You have also admitted a criminal record which contains a number of prior offences of violence and threatening police, showing a propensity for violence and aggressive behaviour. 

2The maximum term of imprisonment for this offence is 25 years.

3The prosecution has provided, in Exhibit A, a Summary of Prosecution Opening which sets out the facts.  They have been read in open court and I do not propose to read them out again.

4Your behaviour on this occasion was appalling, threatening and frightening, and ordinarily would have justified a significant term of imprisonment.

5However, it is noted by both your counsel and by the prosecution that you did express remorse in your interview with police and you pleaded guilty at the earliest reasonable opportunity.  I am satisfied that you are genuinely remorseful for your conduct.  However, given your criminal record and the nature of the offending, that would not ordinarily have saved you from a substantial term of imprisonment had it not been for the intervening event of your accident on 8 October 2022, which occurred after you had served 53 days in custody for this offence.  It involved you falling off a ladder in circumstances which are a little opaque, but which resulted in you sustaining a head strike and, more particularly, a very serious injury to your spinal cord, which has resulted in permanent paraplegia.  This has been recognised by the National Disability Insurance Agency in correspondence and in a Plan which is designed to deal with your daily living for the rest of your life. 

6

There are various other reports which make it clear, I think, that the prognosis is that you will not recover from that injury and will be a paraplegic for life. 

7As has been conceded by the prosecution, that would impact very significantly on your capacity to cope with a term of imprisonment.  It would make service of a term of imprisonment extremely hard for you and, ignoring the difficulties of managing your condition, it seems to me that the stress and strain and the physical management of you within the prison system would impact very significantly on your mental state, which is already fragile.  It has been described comprehensively in the neuropsychological report dated 29 September 2023.

8The principal sentencing objectives of just punishment and denunciation need to be satisfied. 

9You are not going to be in a position to be a threat to the community as a result of your condition.  General deterrence is a very significant sentencing consideration but your circumstances are such that holding you up as an example to others would not have any utility. 

10The fact that you have been remorseful is relevant.  The fact that you pleaded guilty at the earliest reasonable opportunity is relevant and, apart from the utilitarian benefit of your plea of guilty, it is consistent with the remorse that you have otherwise shown and your willingness to accept criminal responsibility for your conduct.

11

In those circumstances your counsel has submitted that a sentence involving imprisonment limited to the 53 days of pre-sentence detention that you have already served would be an appropriate sentence.  The prosecution has indicated that they accept that it would be open to me to impose such a sentence.  The circumstances here are quite exceptional, and this is one of those rare cases where a sentence that would otherwise seem to be completely out of kilter with the seriousness of the offending and your criminal record is the only appropriate sentence that I should impose.  

12Kyel Lees, for the offence of aggravated burglary to which you have pleaded guilty, I convict you and sentence you to imprisonment for 53 days. 

13I declare 53 days’ pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and deducted administratively, which will mean that you do not have to serve any further period in custody.

14But for your plea of guilty, in all the circumstances I would have imposed the same sentence for all of the reasons that I have already stated.

15I also make the disposal order in the terms of the draft that has been provided.  Are there any other matters?

16MS HOGAN:  No other matters, Your Honour.

17HIS HONOUR:  Thank you.

18MS HOGAN:  As the court pleases.

19MS EDWARDS:  As Your Honour pleases.

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