Director of Public Prosecutions v McKelvey (a Pseudonym)

[2024] VCC 458

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

BAILEY MCKELVEY (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE KELLY
WHERE HELD:	Melbourne
DATE OF HEARING:	8 June 2023; 1 February 2024
DATE OF SENTENCE:	12 April 2024
CASE MAY BE CITED AS:	DPP v McKelvey (A Pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 458

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:          Sexual Offending – Child Victim – Opportunistic Offending – Predatory – Verdins principles – Bugmy principles – remorse – guilty plea – standard sentencing -sex offender registration – sentencing principles.

Legislation Cited:         Crimes Act 1958 (Vic); Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sex Offenders Registration Act 2004 (Vic); Sentencing Act 1991 (Vic).

Cases Cited:The Queen v LD [2009] VSCA 311; R H McL v The Queen (2000) 203 CLR 452; R v Dunne [2003] VSCA 150; Gordon v The Queen [2013] VSCA 343; Zhao v The Queen [2018] VSCA 267; Clarkson v The Queen [2011] VSCA 157; Crawford (a pseudonym) v The Queen [2018] VSCA 113; Hasan v The Queen [2010] VSCA 352; R v Khem [2008] VSCA 136; Worboyes v The Queen [2021] VSCA 169; Barbaro v The Queen [2012] VSCA 288; Bugmy v The Queen (2013) 169 CLR 571; Brown v The Queen (2020) 62 VR 491; Director of Public Prosecutions v O’Neill (2015) 47 VR 395; R v Imandonmwonyi [2008] VSCA 135; Dennis v The Queen [2017] VSCA 251.

Sentence:  6 Years Imprisonment; Non-Parole Period 3 years 6 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms E. James	Office of Public Prosecutions
For the Accused	Mr C. Pearson	Greg Thomas Barristers & Solicitors

HIS HONOUR:

Introduction

1Bailey McKelvey,[1] you have pleaded guilty to three charges of sexual penetration of a child under the age of 16,[2] and one charge of possession of a drug of dependence, Cannabis L.[3]

2The maximum penalty for each charge of sexual penetration of a child under the age of 16 is 15 years' imprisonment, and the standard sentence is 6 years' imprisonment.

3

The maximum penalty for the charge of possession of a drug of dependence is

5 penalty units.

[1] A pseudonym.

[2] Crimes Act 1958 (Vic) s 49B(1).

[3] Drugs Poisons Controlled Substances Act 1981 (Vic) s 73(1).

4Charges 1, 2 and 3 are Class 1 offences under the Sex Offenders Registration Act 2004. Pursuant to s 34(1)(c), the mandatory reporting period is life.[4]

[4] Sex Offenders Registration Act 2004 (Vic), s 6, 7, 34(1)(c).

Summary of Offending

5A summary of your offending was read out by the Prosecutor at your plea hearing.

6In the late afternoon of 31 March 2022, the Complainant left her family home, took a bus to Epping station and boarded a train to the city. While walking through the Central Business District, the Complainant struck up a conversation with you during which she indicated she had run away from home. When asked her age, the complainant told you her age. You responded by saying 'oh, OK, so you’re a kid'. The Complainant agreed.

7You and the Complainant then met up a with a friend of yours, before the three of you took a tram to your home. Upon arriving, you asked the Complainant if she was okay with you and your friend smoking. She said she did not mind. You then began smoking cannabis and blowing the smoke into her face. You pressured her to use drugs which led to her consuming cannabis and cocaine.

8Your friend left your home shortly after midnight, after which you and the complainant lay on your bed watching Netflix. At around 1:00 am in the morning on 1 April 2022, you indicated to the complainant that you wanted to have sex with her. She did not respond to you.

9At approximately 3:00 am or 4:00 am, you again turned to her and asked her to have sex with you in return for letting her stay at your home. You undressed yourself and penetrated her vagina with your penis. You did not use a condom. You ejaculated inside her vagina. This offending forms part of Charge 1 – Sexual Penetration of a Child under 16 years.

10On the morning of 1 April 2022, you and the Complainant woke up together at your house. You both started watching Netflix together. At about 1:00 pm, whilst watching a movie, you started touching the Complainant, kissing her lips and neck and putting your hand underneath her shirt. You undressed her and asked her to perform oral sex on you. She placed your penis in her mouth and you continued penetrating her mouth. This offending is the subject of Charge 2 – Sexual penetration of a child under 16 years.

11You then penetrated her vagina and engaged in sexual intercourse for approximately 20 minutes until you ejaculated. This offending is part of Charge 1.

12Later that evening, you suggested having sex again. You again penetrated the Complainant's vagina with your penis for approximately 30 – 40 minutes until you ejaculated. You did not use a condom. This offending also constitutes part of Charge 1.

13On 2 April 2022 at about 11:00 pm, the Complainant was cleaning the house when you complimented her and lifted her onto your bed. You kissed her and took her clothes off, then put your tongue in her vagina and penetrated her vagina with your tongue. This offending constitutes Charge 3 – Sexual penetration of a child under 16 years.

14On 4 April 2022, at around midday, you and the Complainant went for a long walk and then returned to your home. Between approximately 10:00 pm and 11:00 pm, you and the complainant were watching Netflix when you turned to her and suggested she perform oral sex on you. She complied. This offending forms part of Charge 2. You then penetrated her and engaged in sexual intercourse until you ejaculated. This offending forms part of Charge 1.

15On 5 April 2022, you took her to Front Yard Youth Services. You told her you had a disability support worker visiting and having an underaged person with you would raise suspicions. At about 11 to 12:00 pm, the Complainant entered Front Yard Youth Services and spoke to reception staff. At about 3:47 pm, Front Yard Youth Services contacted police. Department of Families, Fairness and Housing ('DFFH') were also notified and they contacted the complainant's mother.

16Upon meeting with her mother, the Complainant expressed concerns that she could be pregnant or have a sexually transmitted infection as she had had to sleep with you and you did not use protection. She told her mother that the person she had sex with was in his late 20’s.

17Her mother contacted police who then attended and took the complainant to speak to the Melbourne Sexual Offences and Child Abuse Investigation. Following this, an appointment was made at the Royal Children's Hospital for a Forensic Medical Examination.

18On 3 May 2022, police executed a search warrant at your address. They located Cannabis in a small bowl under the kitchen cupboard, Cannabis in a small snap lock bag in the cupboard above the fridge and cannabis in the cupboard above the fridge. This offending constitutes Charge 4 – Possess Drug of Dependence.

Personal Circumstances of the Offender

19Your personal circumstances were summarised in the reports of Dr Gina Cidoni and Dr Harriet Downing, tendered at your plea.

20You are a Yorta Yorta man born in Numurkah. You are now in your 30’s. You have three full siblings and four step siblings, due to your parents separating when you were a child.

21You reported to Dr Cidoni that you were raised initially by your mother in Dandenong. When you were 12, she formed a relationship with your now stepfather who was violent towards you and you suffered physical abuse at his hands. You eventually left your mother's home and went to live with your father where you stayed for two years and then shuttled between your parents. At age 15, Child Protection intervened due to your stepfather's violence and your poor mental health. You were placed in a residential care unit in Frankston where you were exposed to drug use and violence. You exited the system at age 18 and experienced homelessness until age 24 when you were provided with transitional housing. You remained there for two years before relocating to a suburb in the north of Melbourne where you lived until your arrest.

22You had impaired motor skills as a child due to Charcot-Marie-Tooth disease which caused frequent falls, head trauma and hospital attendances. You were diagnosed with epilepsy at age 12.

23You reported to Dr Downing that you attended 12 different schools throughout your childhood because your family moved around. Later, you moved between your parents' homes. You report having to miss a lot of school from around 12 years of age following your diagnosis of epilepsy. You report having been bullied severely from a young age. After completing Year 10, you did some hairdressing and then completed a Certificate II in Horticulture and a Certificate III in Retail. You worked in retail for a few years and then commenced a traineeship in hospitality but left due to your struggles with Charcot-Marie-Tooth disease. Since 2021 you have been supported by an NDIS grant. Before entering custody, as part of your NDIS plan you started a small horticultural business growing cacti. Counsel on your behalf noted that you were only just experiencing personal stability in your life at the time of this offending.

24You have no history of enduring intimate relationships and Dr Downing notes that you are sexually and emotionally immature. You maintain relationships with your father, your grandmother and your uncle who has a history of drug use.

25You reported to Dr Downing that your epilepsy causes 'grand mal' and 'absence' seizures every two to three days, triggered by stress. You reported an overdose at about 23 years of age for which you were hospitalised. You attribute the overdose to psychosis and suicidal ideation brought on by the side effects of Seroquel.

26You reported that you have been a moderate to heavy user of cannabis for most of your adult life.

27Given your personal background, your slight physical stature and your vulnerabilities relating to epilepsy and Charcot-Marie-Tooth disease your time in custody is likely to be onerous.

Defence Submissions

28Mr Pearson on your behalf conceded that the nature of your offending will inevitably attract a term of imprisonment however submitted that a short period in custody with a period of extended parole was warranted along with substantial or total concurrency.  

29Mr Pearson accepted that you have some relevant criminal history involving Persistent Contravention of an Intervention Order in 2018. He submitted that your youth is a relevant factor in determining the length and structure of your imprisonment. You were in your late 20’s at the time of offending and he therefore concedes that the door is closing on your youth, but he argued that the materials demonstrate entrenched immaturity which equates to youthfulness.

30He characterised your prior court appearances as low-level offending typical of someone living on the streets. Your previous appearances have been confined to the Children's Court or Magistrate's Court for offences such as shop stealing and possession of weapons. On those occasions, you were either fined or placed on undertakings. You have never been placed on a supervisory order and you have never previously been sentenced to a term of imprisonment.

31He conceded that you were evasive and made no admissions when you were spoken to by Police in May 2022. Nonetheless, he submitted that your pleas of guilty were still significant.

32He submitted that the following factors were relevant in characterising your offending:

(a)   The offending was not premeditated, and you did not seek the complainant out;

(b)   The sexual aspect of the relationship took place while both of you were under the influence of drugs;

(c)   You accept the characterisation of the offending that has been put to you by the Prosecution;

(d)   You did not understand at the time that you were acting in a sexually predatory way, you believed you were being kind to the Complainant and that you did not do anything that was not agreed upon;

(e)   You now understand the wrongfulness of your actions due to the age of the complainant and the mere fact that the complainant agreed to the sexual activity does not excuse your conduct.

33

Mr Pearson tendered a neuropsychological report by Dr Harriet Downing dated

19 August 2023. She assessed your cognitive functioning in the average to low average range including the borderline range on measures relating to attention and psychomotor processing speed. She formed the view that there is no tangible connection between the alleged offending and your cognitive capacity.

34A psychological report by Ms Gina Cidoni dated 28 January 2024 proffered diagnoses of Substance Use Disorder, Borderline Personality Disorder and Bipolar Disorder. She formed the view that there is no causal connection between your mental state and your offending. She assessed you as a moderate to high risk of committing further offences but noted that your level of insight, lack of sexual violence offences previously and your preparedness to engage in treatment and therapy whilst in custody were significant protective factors. She believes that your Aboriginality, together with your mental health would make custody more onerous than someone without those features.

35Mr Pearson relied on the above protective features referred to by Ms Cidoni to submit that the length of the term of imprisonment could be diminished in accordance with the principle of totality. He referred the Court to the case of The Queen v LD:

Since protection of the community is always a relevant consideration in sentencing, the directive in s 6D(a) will ordinarily have little impact on the determination of the appropriate sentence. Its main purpose, we would think, is to make sure that sentencing judges give proper consideration to the question of community protection and undertake the requisite risk assessment.[5]

[5] [2009] VSCA 311, [27].

Prosecution Submissions

36Ms James for the Prosecution submitted that your offending falls in the mid to serious range and that meaningful imprisonment with cumulation is essential in this case. She drew the court's attention to the composition of the charges such that Charge 1 relates to five rolled-up instances of offending and Charge 2 is a rolled-up charge encompassing three instances of offending. She submitted that the following factors bear on the nature and gravity of the offending:

(a)   This was repeated sexual offending over several days; and

(b)   You failed to use a condom – leading to consequent fear and risk of exposure to sexually transmitted diseases and/or pregnancy;

(c)   The victim is a vulnerable young adolescent who had run away from home;

(d)   The offending may be characterised as exploitative in that it involved seeking sexual acts in return for accommodation;

(e)   The considerable age disparity between you and the complainant;

(f)    The use of drugs with and in the presence of the complainant prior to the sexual acts; and

(g)   The impact on the Complainant as illustrated in her Victim Impact Statement.

37Ms James underscored your behaviour in pressuring the Complainant to use drugs and your exploitation of her by requesting sex in exchange for shelter and argued that this was predatory behaviour. She submitted that at the time of offending, you were not a highly vulnerable young person but rather, you were on a NDIS plan at the time and had housing and mental health supports.

38Ms James submitted that your behaviour on demonstrates a degree of awareness of the wrongfulness of your offending as you told the complainant that she had to leave before the NDIS worker arrived.

Standard Sentence Provisions

39Pursuant to s 6B(2)(a) of the Sentencing Act 1991, you are to be sentenced as a serious sexual offender on Charge 3.

40Section 6D of the Sentencing Act 1991 mandates that protection of the community is the principal purpose for which you are to be sentenced on that charge. 

41Section 6E of the Act requires that the term of imprisonment you receive for charge 3 is to be served cumulatively unless otherwise directed by the court. 

Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.

42Ms James referred the Court to the cases of R H McL v The Queen,[6] R v Dunne,[7] Gordon v The Queen,[8] and Zhao v The Queen,[9] as authorities for the statutory presumption of cumulation in moderation of the principle of totality.

[6] (2000) 203 CLR 452 (‘R H McL’).

[7] [2003] VSCA 150 (‘Dunne’).

[8] [2013] VSCA 343 (‘Gordon’).

[9] [2018] VSCA 267 (‘Zhao’).

43In R H McL, McHugh, Gummow and Hayne J relevantly said:

The need for judges not to compress sentences is especially important where the accused person is a "serious sexual offender" within the meaning of s 16(3A) of the Sentencing Act, and similar provisions. Section 16(3A) gives effect to a legislative policy that serious offenders are to be treated differently from other offenders. It was plainly intended to have more than a formal effect, which is the effect it would frequently have if its operation was subject to the full effect of the totality principle. Given the terms of s 16(3A), the scope for applying the totality principle must be more limited than in cases not falling within that section. The evident object of the section is to make sentences to which it applies operate cumulatively rather than concurrently. The section gives the judge a discretion to direct otherwise. But the object of the section would be compromised and probably defeated in most cases if the ordinary application of the totality principle was a sufficient ground to liven the discretion. Since the relationship between s 16(3A) and the totality principle does not arise in this appeal, it is enough to say that sentencing judges need to be astute not to undermine the legislative policy inherent in s 16(3A) by applying the totality principle to the sentences as if that section (or s 6E which replaced it) was not on the statute book.[10]

[10] (n 6) 476-7 [76].

44In Dunne, the Court of Appeal set out the following:

In my opinion, s.6D(a) does not in a case such as the present exclude the sentencing purposes that would have been particularly applicable had the provision not been passed, namely, denunciation, general deterrence and just punishment…. Further, paragraph (a) of the section makes the protection of the community from the offender the principal, not the sole, purpose for which the sentence is imposed.[11]

[11] Dunne (n 7) [24].

45In Gordon, Redlich JA said:

However, it may at least be said that as the objective gravity of the total offending increases, so will the degree of cumulation which is ordered, thereby producing a total effective sentence which will more closely correspond with both the legislative policy underlying s 6E and the principle of totality.[12]

[12] Gordon (n 8) [74].

46In Zhao, the Court of Appeal citing the above principles said:

It follows from these statements of principle that s 6E and totality both apply, but that the full effect of totality is to be somewhat reduced, in order to give proper effect to the legislative intent manifested in the section.[13]

[13] Zhao (n 9) [94].

47

The Prosecution did not submit that a disproportionate sentence is warranted in this case however submitted that meaningful cumulation is necessary having full regard to the rolled-up nature of Charges 1 and 2 in circumstances where the complainant was highly vulnerable and where a suite of aggravating factors are present on both counts. I intend to order partial cumulation as between the

rolled-up counts to reflect the objective seriousness of each.

Victim Impact Statement

48A Victim Impact Statement was tendered and read aloud by the victim at your plea hearing.

49She told the court that as a result of your offending she has had her mental health ruined and has required support with depression and PTSD. She is unable to 'handle things' emotionally.

50She said that the bruising and pain she suffered is not an appropriate demonstration of the consequences of your offending.

51Socially, she is terrified of adults in the workplace, and as such she cannot work, and dreads being in public due to an ever-present fear of further offending.  

52She said that despite your actions, she will survive what you have done to her. She elected to read her statement in person in court, knowing you were watching. That took substantial resolve.

53It is well established that sexual activity engaged in with a child incapable of consenting is presumed to cause 'long-term and serious harm, both physical and psychological' to that person.[14] Your victim has been able to articulate the serious long-term harm your predatory offending has had on her and is likely to have well into the future. I intend to give such damage the weight it is due.

[14] Clarkson v The Queen [2011] VSCA 157, [33].

Moral culpability and gravity of offending

54You offended against a child you knew was a young adolescent. You also knew that she was in a uniquely vulnerable position. You knew this child had run away from home and was incapable of supporting herself. You exploited this vulnerability. This increases the seriousness of your offending.    

55Your offending encompasses a series of instances over days.

56On numerous occasions you offended against your victim without the use of protection and ejaculated inside her. These two factors elevate the gravity of your offending. It created the real risk of pregnancy and sexually transmitted disease.[15]

[15] Crawford (a pseudonym) v The Queen [2018] VSCA 113 [60]; Hasan v The Queen [2010] VSCA 352 [38]; R v Khem [2008] VSCA 136 [34].

57I accept the prosecutor's contention that your offending is mid-range. A number of aggravating features are absent here- you did not use a weapon or bodily violence, you did not act in company and you did not demean or explicitly threaten your victim. The absence of additional aggravating features is not a mitigating factor. Your offending, by any measure, is objectively grave.

Guilty Plea

58Mr Pearson submitted that your pleas of guilty are significant for the following reasons:

(a)You have spared the victim a challenging and stress-inducing criminal trial;

(b)You are very sorry for what you accept you did;

(c)You have accepted responsibility for your offending;

(d)Your pleas of guilty have pragmatic and utilitarian value as they save the time and expense of a protracted criminal trial; and

(e)Although the sun is setting on it now, your pleas of guilty were entered during the COVID-19 pandemic and, have an enhanced mitigatory effect in the manner discussed in Worboyes v The Queen.[16]

[16] Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’).

59

I accept that your pleas have a utilitarian benefit, and whilst it was conceded by

Mr Pearson that Worboyes may not still carry the force it once did, it still operates to provide mitigation at the point you pleaded guilty. You are therefore entitled to some modest additional discount.

60As to the submission that you are 'very sorry': apart from your pleas I have not been provided with anything from you which demonstrates your remorse. The only other record supportive of remorse comes from the report of Dr Jackson. In it, you are reported as saying that you regretted your actions and felt 'responsible…like a horrible person'.[17]

[17] Report of Dr Harriet Downing dated 19 August 2023 (Exhibit D1) page 7 (‘Downing 2023’).

61On the other hand, you minimised your offending by reporting to Dr Jackson that you had been heavily under the influence of intoxicants and may have been undergoing a psychotic episode. You describe being pressured by a friend of yours to engage in your predatory and exploitative crimes against your victim, and when discussing strategies to mitigate the risk of reoffending, you victimise yourself by saying that you 'can be taken advantage of'. Worse still, you told Dr Jackson on multiple occasions that your victim had been the instigator of the offending against her and you chastise your victim, telling Dr Jackson that your victim needs to 'reflect on her behaviour/intentions and consequences'.[18]

[18] Ibid.

62Ms Gina Cidoni's report is dated 28 January 2024. Insofar as it says anything about your remorse, it appears to summarise the relevant passages of Dr Jackson's report and indicates that you again expressed regret and demonstrated some insight into your offending.[19] Neither point was expanded upon and I do not have a firmer foundation for findings of contrition.

[19] Report of Ms Gina Cidoni dated 28 January 2024 (Exhibit D2) [64] (‘Cidoni 2024’).

63The evidentiary burden rests with the accused. The Court of Appeal has repeatedly stressed that cogent evidence is required before remorse can be established.[20] I am unpersuaded that you are genuinely remorseful. You will be given credit for the administrative utility of your pleas, but I do not intend to further reduce your sentence to reflect your asserted penitence.

[20] E.g., Barbaro v The Queen [2012] VSCA 288, [37]-[40].

Prospects of rehabilitation

64It was submitted that you have reasonable prospects of rehabilitation. This was based on a combination of factors, namely that your prior criminal offending is not particularly serious, and that you retain the support of your grandmother and a number of other people in your life who are prepared to assist you. Mr Pearson submitted that your level of insight is progressing and that, while imperfect, it demonstrates a preparedness to effect change in your life.

65A bundle of six certificates of completion of various programs were tendered at your plea. Each demonstrates that you have undergone and completed courses whilst on remand. That is a positive.

66I was also provided with two letters, one from Ms Kayla Harvey, Support Coordinator at Genu and another from Chamai Maisrikrod from Green Light, as well as an occupational therapist's report from Jane Flanagan. They each describe steps you have undertaken to resolve a variety of problems you face, such as obtaining permanent housing and obtaining gainful employment.

67Both the reports of Dr Downing and Ms Cidoni speak encouragingly of your prospects of rehabilitation said to be evidenced by your commitment to change.

68You have exhibited a desire to change your situation. This is to be commended. If genuine, it will ease your eventual reintroduction into the community.

69Against that, Ms Cidoni says that you present as a moderate to high risk of reoffending.[21] Particularly concerning are her comments about previous failures in undergoing supervision and your apparent emotional dysregulation and impulsivity.[22] However, I also acknowledge Ms Cidoni's opinion that there are protective factors in place which may minimise or mitigate this risk.[23]

[21] Cidoni 2024 (n 19) [147].

[22] Ibid, [148].

[23] Ibid [149]-[150].

70On balance, your prospects of rehabilitation are fair.

Bugmy principles

71It was submitted in writing and at your plea that various features of your upbringing involved quite 'profound impoverishment in every sense of the word' such that it enlivens the principles enunciated in the case of Bugmy v The Queen.[24]

[24] (2013) 169 CLR 571 (‘Bugmy’).  

72In that case, the court said:

The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.  

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing disposition.[25]

[25] Ibid, [43]-[44].

73Ms Cidoni chronicles your childhood deprivation, exposure to violence and substance abuse and the impact of these circumstances on your development into adulthood.[26] I am satisfied that the conditions enlivening the application of the principles in Bugmy are present in your history of exposure to domestic violence and dysfunction. Your moral culpability is lowered somewhat, but there is cogent evidence here that you fully understood the wrongfulness of your actions when you tried to hide your victim from NDIS workers.  

[26] Cidoni 2024 (n 19) [126].

Verdins principles

74There is no causal connection between your mental state and your offending. Limbs 1[27] and 3[28] of Verdins are not enlivened. I am also not prepared to find that limb 4 is enlivened, as I am satisfied from the various psychological reports that you understood the wrongfulness of your conduct.[29]  Mr Pearson submitted that limbs 5 and 6 of Verdins are engaged. Having regard to your personal circumstances and the opinions of both Ms Cidoni and Dr Jackson that gaol will be more burdensome on you due to your various diagnoses and will have a significantly adverse impact on your mental health, I accept that some moderation of your sentence is warranted.

[27] Brown v The Queen (2020) 62 VR 491, 507-508 at [61].

[28] E.g., DPP v O’Neill (2015) 47 VR 395, 410 at [59].

[29] Compare R v Imandonmwonyi [2008] VSCA 135, [22] and Dennis v The Queen [2017] VSCA 251, [118].

Sentencing Principles

75Section 5 of the Sentencing Act 1991 provides that the only purposes for which you may be sentenced are:

(a)   To punish you in a manner and to an extent which is just in all of the circumstances;

(b)   To deter you or others from committing similar offences in future;

(c)   To facilitate rehabilitation;

(d)   To manifest the denunciation of your conduct;

(e)   To protect the community; or

(f)    A combination of two or more of these purposes.

76The gravity of your offending, your poor insight, your emotional dysregulation and patchy capacity to adhere to supervision elevates the need for community protection. Specific deterrence has an important role to play in your sentence, but your modest history of offending justifies tailoring a sentence which allows for your rehabilitation. Sexual offending against vulnerable children is extremely grave and abhorrent. The community condemns it. This court does too.

Sentence

77Mr McKelvey, stand up.  I sentence you as follows:

78On Charge 1, a rolled up charge of sexual penetration of a child under the age of 16, you are convicted and sentenced to 3 years' gaol.

79On Charge 2, a rolled up charge of sexual penetration of a child under the age of 16, you are convicted and sentenced to 3 years' gaol.

80On Charge 3, sexual penetration of a child under the age of 16 years, you are convicted and sentenced to 18 months' gaol.

81On Charge 4, possession of a drug of dependence, you are convicted and sentenced to a fine of $300.

82The sentence on Charge 1 is the base sentence. 2 years of the sentence on Charge 2 and 12 months of the sentence on Charge 3 are to be served cumulatively upon the sentence in Charge 1 and on each other, producing a total effective sentence of 6 years' gaol. I fix a period of 3 years and six months as the non-parole period.

83You have served 681 days of presentence detention, and I declare this period as time served against the sentence I have just imposed.

84Pursuant to s 6AAA Sentencing Act 1991, I declare that but for your plea of guilty, I would have imposed a sentence of 9 years gaol with a non-parole period of 6.

85It will be noted on the Court record that, in relation to Charge 3, you have been sentenced as a serious sexual offender.

86Pursuant to s 34(1)(c) of the Sex Offender Registration Act, I declare that you must continue to comply with reporting obligations imposed under the Act for life.  

87You will be asked to sign these.

88MR PEARSON:  Could I accompany Your Honour's associate?

89HIS HONOUR:  You can of course. 

90MR PEARSON:  So he has signed the receipt acknowledging that and he has been given a copy of the Sex Offender Registration conditions, Your Honour.

91HIS HONOUR:  Thank you, Mr Pearson.  Are there any ancillary orders sought?  Any others I should say.

92MS JAMES:  No, no other ancillary orders.

93HIS HONOUR:  Thank you.  Mr McKelvey can be removed.

94MR PEARSON:  Your Honour pleases, thank you very much.

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