Director of Public Prosecutions v Russell-Keely
[2024] VCC 1199
•7 August 2024
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00774 & CR-24-00775
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRYAN RUSSELL-KEELY |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 31 July 2024 | |
DATE OF SENTENCE: | 7 August 2024 | |
CASE MAY BE CITED AS: | DPP v Russell-Keely | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1199 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Sexual penetration of a child under 16; produce child abuse material; persistent contravention of a family violence intervention order; possess child abuse material; sexual assault of a child under 16.
Legislation Cited: Crimes Act 1958 (Vic) ss 49B, 49D, 51C, 51G; Sentencing Act 1991 (Vic) ss 5A, 5AA, 11, 6AAA; Sex Offenders Registration Act 2004 (Vic) sch 1, s 34(1)(c)(i).
Cases Cited:Clarkson v The Queen (2011) 32 VR 36; DPP v Ooms [2023] VSCA 207.
Sentence: Total effective sentence of six years and eight months’ imprisonment; minimum non-parole period of four years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N. Batten | Office of Public Prosecutions |
| For the Accused | Ms C. Jackson | Angus Cameron Lawyers |
HER HONOUR:
Summary
1In 2023 you were a PE teacher at a secondary school. You had sex with a child, a student at that school, on multiple occasions. Your victim skipped school to see you, wearing her uniform. You asked her for her loyalty, knowing that you would be punished if your conduct became known. She was 14, and 15 years old.
2After your offending was detected and you were bailed, you persistently contacted her in an attempt to carry on what you had deluded yourself into believing was an erotic and affectionate relationship. No such relationship was possible between you, her teacher, senior to her by 20 years, and her, a child.
Pleas of guilty and maximum penalties
3Bryan Russell-Keely, you have pleaded guilty to four counts of sexual penetration of a child under 16.
4I note that each of these charges is put on a 'rolled up' basis encompassing more than one act of sexual penetration. Charge 1 relates to two acts of penetration;[1] Charge 2 encompasses four;[2] Charge 4 relates to three acts of penetration;[3] and Charge 6 relates to five acts of penetration.[4]
[1]Penile penetration of vagina/mouth.
[2]Penile penetration of vagina/mouth and digital penetration of the vagina.
[3]Penile penetration of vagina/mouth and digital penetration of the vagina.
[4]Penile penetration of vagina/mouth and digital penetration of the vagina.
5Each charge of sexual penetration of a child under 16 carries a maximum penalty of 15 years' imprisonment[5] and attracts the operation of a 'standard' sentence of six years.[6]
[5]Crimes Act 1958 (Vic) (‘Crimes Act’) s 49B.
[6]Sentencing Act1991 (Vic) (‘Sentencing Act’) s 5A.
6You have also pleaded guilty to one charge of sexual assault of a child under 16,[7] an offence which carries a maximum penalty of 10 years' imprisonment, and which attracts the operation of a 'standard' sentence of four years.[8]
[7]Crimes Act (n 5) s 49D
[8]Sentencing Act (n 6) s 5A.
7You also pleaded guilty to two charges of producing child abuse material,[9] and one charge of possessing child abuse material;[10] each of these charges carrying a maximum penalty of 10 years' imprisonment.
[9]Crimes Act (n 5) s 51C.
[10]Ibid s 51G.
8Sexual penetration of, or sexual assault of a child, and producing or possessing Child Abuse Material are each 'serious offender' offences; I deal with that consideration later in these reasons.
Factual summary
9A summary of prosecution opening dated 1 July 2024 was tendered on your plea and forms the basis of this sentence; I will refer to parts of it in summary form.
10Your offending unfolded in two parts. The first between 28 May 2023 and your first arrest on 28 August 2023; the second after your release on bail on 29 August 2023 and the making of a Family Violence Intervention Order (‘FVIO’) which prohibited you from contacting your victim. After these events your offending recommenced until your second arrest and remand into custody on 5 October 2023.
Part 1
11You were a 34-year-old teacher at a secondary school. Your victim, who I will call RD[11] for the purposes of these reasons, was a 14-year-old student at the school. She turned 15 during the period of your offending. In about March 2023, you and RD connected via social media.
[11]A pseudonym.
12On 28 May 2023, you picked RD up from her home and drove to nearby bushland. You talked for a while before taking off your clothes and getting into the back seat of the car. You wore a condom and penetrated her vagina with your penis, you complained about that being uncomfortable and removed the condom before penetrating her vagina again. You then penetrated her orally and ejaculated in her mouth.
13You talked with her about the consequences for you if your offending was detected, including losing your job and being arrested. RD reassured you that would not happen.
14These events give rise to the rolled up Charge 1.
15On 27 July 2023, you took the day off work and RD skipped school for the day. You picked her up from a carpark. She was wearing her school uniform. You drove to bushland. You had brought an inflatable mattress, blankets and pillows. RD masturbated your penis. You penetrated her orally and put your fingers in her vagina before penetrating her with your penis. You then ejaculated into her mouth. These events give rise to the rolled up Charge 2. You video-recorded parts of these events on your phone. This gives rise to Charge 3, production of child abuse material.
16On 22 August 2023, you again went to RD's house and collected her. It was 10 pm. You again drove to nearby bushland. There was some disharmony between you that resolved before you again engaged in sexual activity. She masturbated your penis; you penetrated her vagina with your fingers, you penetrated her vagina with your penis and finally ejaculated into her mouth. These events give rise to rolled up Charge 4.
17You video-recorded these events on your phone. This gives rise to Charge 5, production of child abuse material.
18You drove her home at about 11:00 pm.
19On 26 August 2023, you again collected her at night time, this time you took her to your home. You again engaged in the same range of penetrative acts I have already described, this time five separate acts are particularised and rolled up under cover of Charge 6. You again recorded events on your phone. This gives rise to Charge 7.
20In August, Sarah, with whom you had been in a relationship, reported her suspicions to police after seeing communication between you and RD on social media.
21RD made a video statement and particularised these events with police.
22You were arrested at your workplace. You partially exercised your right to silence but when asked about the evidence against you, you responded with one word: 'fucked'.
23You were remanded overnight to appear at Court the following day.
24On 29 August 2023, you were bailed on strict conditions. These included prohibitions on contacting RD, creating social media accounts or being within 20 metres of her.
25The following day a FVIO was made for the protection of RD. It contained similar prohibitions on contacting or going near her. It was served on you the following day.
Part 2
26Part 2 of your offending then unfolds.
27In breach of your bail conditions and of the conditions of the FVIO you created a social media account 'littlenuffin', added RD on Snapchat, and contacted her.
28Between 6 September 2023 and 4 October 2023, you contacted RD on many, many occasions. The content of this contact occupies five pages of the prosecution opening. These events are detailed under the 23 particulars in the indictment and give rise to Charge 8, persistent contravention of the Family Violence Intervention Order. I extract here small excerpts of your messages which provide the tenor of, but not the extent of, your pursuit of RD in this period.
29On 18 September 2023, you sent an audio recording of yourself reading a letter to RD. You tell her how much you love her and that your 'relationship' had been through difficult times in the past few weeks, but she was 'worth fighting for'.
30On the same day you write:
'I love you baby so much it hurts me [laughing emoji] wishing you a amazing sleep and dreams of us living together in our own home with our kids running around laughing. Your my beautiful angel [angel emoji] love u from the deepest part of my heart [heart emoji] xx'.
31There were many other messages of a similar kind, and others of this kind:
'I'm hiding my device now. Shane gone and yelled at that bitch and she's reported it to the cops. They might come and look/take all my devices again. If u don't hear from me that's why. I gotta hide it. Because they will take my phone. His a fucking idiot. Sorry about this . Talk tomorrow babe love u [kiss emoji]'.
32On 4 October 2023, RD told you in a message that she had fought with her mother about you continuing to having contact with her since being on bail. You tell her:
'You are so strong baby, to get through this so far is amazing. I love u soo much and I can't wait for us to be together forever after all is over. Sweet dreams baby, u mean the world to me and I am so lucky to have u [heart emoji] [kiss emoji] [kiss emoji]'.
33You also attached photos of yourself and other subjects. You speak of your desire for her. You send her intimate photos of yourself. Specifically, of your erect penis.
34These events, described at [39] of the Prosecution Opening, give rise to Charge 8, persistent contravention of a Family Violence Intervention Order.
35Between 10 September 2023 and 1 October 2023, RD sent you images and videos containing child abuse material via Snapchat. They were a combination of images and videos of past sexual encounters between you. You saved 25 images and videos. This gives rise to Charge 9, possession of child abuse material.
36Between 16 September 2023 and 30 September 2023, you arranged to meet via Snapchat. This forms part of Charge 8, persistent contravention of a Family Violence Intervention Order.
37Having met her, you kissed her intimately and hugged her. This gives rise to Charge 10.
38RD's mother reported the Snapchat contact to police on 5 October 2023. You were arrested for a second time. Police executed a search warrant at your home and seized your iPad. Initially you told police you did not know what the password was; you later gave it to them. Your password was RD's birthday.
39You told police that you had started off as friends, this has become a 'relationship' and that you loved her. You were remanded into custody.
Prior History
40You have no prior criminal history of any kind; you come before the Court for the first time at age 36.
Nature and gravity
41The law against having sex with children reflects the community's collective understanding of the harm that flows from premature sexual activity.
42In the case of Clarkson, the Victorian Court of Appeal said:
The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent. It is for this reason that a child's consent is more accurately referred to as 'apparent' or 'ostensible' consent.[12]
[12]Clarkson v The Queen (2011) 32 VR 36.
43It is clear from the material in your case that you thought, incorrectly, that RD was consenting, and that this legitimised your conduct. But her consent was apparent and not real. You used this apparent consent to delude yourself. You were 20 years her senior. You were part of the teaching staff at her school, one of the people who, in their professional roles, exercised responsibility and authority over her. You had taught her for one gym class in that role.
44There is no such thing as a consenting child. That remains the case even if the child appears to possess desires and participate willingly.
45The prosecution summary described you as having a 'relationship' which imports notions of equality and consent. Your positions in the 'relationship' were grossly disparate. Your 'relationship’ was one of offender and victim. You offended against her persistently. You breached your obligations to her as an adult and as a member of the teaching staff at her high school.
46You asked for her silence and her loyalty. It is irrelevant that she said she would give it to you. What matters is that you put her, a child, in that position, of being responsible for your welfare and your liberty.
47You did not regularly use protection against pregnancy or transmission of sexual disease; I acknowledge that your particular practices did not regularly expose her to the highest risk level of her becoming pregnant, but there was still some risk.
48Your counsel conceded sensibly that your offending sits in the upper range by reference to some of these features.
49There is, I accept, an absence of aggravating factors that sometimes attend the offence of sexual penetration of a child, such as pressure or overt manipulation.
50You recorded your sexual activity on video; this gives rise to the child abuse materials charges – both the production and possession. Later, RD sent some of the videos and images back to you. I accept that your production and possession of that material was for personal use and was not for consumption more widely. The principles for the assessment of the gravity of child abuse material engaged in your case are these: an actual child was the subject of that material; multiple penetrative acts were recorded. However, there was no suggestion that you sought to share, or profit from, that material.
51It is disturbing that you allowed yourself to become infatuated to the degree that even apprehension by police, a night in custody, bail conditions, and an intervention order could not deter you from making contact with RD. Your apprehension was apparently seen by you as just a bump in the road of your 'relationship'. Your capacity for self-deception at that point is very disturbing. I assess your moral culpability as high, particularly for those events that occur after your first arrest.
52The charge of persistent breach of a FVIO takes in 23 separate events, one of a meeting and the rest being instances of your contacting her online. It is a very serious example of that offence. The order was made for RD's protection and you went about breaching it almost immediately.
53Again, the content of those breaches were affectionate and did not herald violence or other forms of overt control. They are however, so confusing for your young victim, caught between giving a VARE statement to one set of adults in authority, and receiving from you, another adult, 20 years her senior, sending her a barrage of romantic and intimate messages.
Victim impact
54I must take into account the impact on your victims. RD and her mother both filed victim impact statements. They both provided detailed descriptions about how what you did affected them. It was a trust-shattering event for both of them. RD describes you as having come between her and her loved ones. She has developed insight into how your intimacy with her has distorted her understanding of love and intimacy.
55Her mother described what you did as being 'like an explosion'. It has created tension between family members, she has withdrawn from social occasions and become isolated. She thinks her daughter does not love her anymore.
56These are just some of the poisonous consequences for your victim and for her family; I take them into account in imposing this sentence.
Personal circumstances
57You are 36 years old and at the time of your offending you were 34.
58You were born in Echuca and you have two younger brothers. Your upbringing has been described as 'unremarkable'; you were raised on your parents' dairy farm, and sport quickly became an important feature of your childhood. This interest has extended into your adult life, and you have represented Victoria and Australia on various occasions.
59Your parents separated when you were about 17-18; your now mother works in Bendigo, and your father is a retired dairy farmer. You maintain a close relationship with your parents and your siblings and they have remained supportive of you throughout these proceedings; I note that your mother and your younger brother Leon have both provided character references for you. Your family also attended court.
60You went to Cobram Primary School, Nathalia Primary School and Nathalia High School. On your plea it was submitted that you found school to be a difficult place, and that you were often bullied on account of your shyness. You recall that things improved when you moved to Bendigo to live with your uncle, where you completed Year 11 and 12 at Bendigo High School.
61Upon completing secondary school you undertook various jobs, including labouring, before moving to Sweden with your then partner to work as an au pair and pursue your interest in competitive orienteering. You returned to Australia six months later and commenced your study in health and physical education at La Trobe University. After completing this, you and your partner returned to Stockholm, where you continued to engage in competitive orienteering whilst teaching sport and fitness at various international schools.
62After six years you returned to Bendigo to live with your mother. You taught at Castlemaine Secondary College and Daylesford Secondary College before commencing your teaching role at the victim’s secondary school in July 2022.
Matters in mitigation
Pleas of guilty
63You indicated early that you would plead guilty and you have done so. That is a very significant matter on this sentence and it indicates your willingness to facilitate the course of justice. You have vindicated your victim's account. You have never cross examined her. The broader community, too, is assisted because your case is dealt with as pleas of guilty. Court time is saved and resources can be directed elsewhere. I take this into account as a very important feature of this sentence.
Psychological material
64Two psychological reports were tendered on your plea, authored by different practitioners, approximately five months apart.[13] Neither report raised matters that gave rise to formal 'Verdins' submissions but what was submitted for on this material was the growth and development in your insight between the creation of the first and the second reports. Mr Simmons describes his lack of confidence in your being able to refrain from making contact with your victim in future, nor did you display at that stage, in speaking with Mr Simmonds, much appreciation of the gravity of your conduct.
[13]Report of Warren Simmons (9 February 2024); Report of Jeffrey Cummins (10 July 2024).
65The second report, by Mr Cummins, does describe some significant improvement in your insight, though it is perhaps still imperfect. You describe being in somewhat of a low state prior to your commission of these offences. I would describe, out of this material, your insight certainly as developing but still a little uneven. Overall, it appears that your offending arose in part from lack of maturity and low self-esteem on your part; this is context for your offending, rather than mitigation.
66It is certainly clear that you have experienced your time in custody as salutary.
Remorse, insight and rehabilitation
67On your plea your counsel tendered a signed apology letter. It speaks of your deep shame and embarrassment; and of your resolve to never put yourself into a similar position again. You did not give sworn, or tested evidence about these matters. I give your letter the weight that it earns in that context.
68Despite your need to develop some further insight, I regard your prospects of rehabilitation to be good, very good even. You will need to requalify as the teaching profession will no longer be open to you. You have a history of pursuing education, of self-discipline and of appropriate, mature adult intimate relationships. You do not have drug or alcohol use problems. You maintain the loyal affection of your mother, brother and other family members.
69Further, you have provided character references which speak of your good qualities; your integrity and your consideration of others have been noticed in other contexts. Your former partner is still a friend. The references also speak of your anguish and remorse arising from these events. They also speak of your reliability and self-discipline and your determination to make amends and improve yourself. I take your otherwise good character into account. It was not argued that your role as teacher enlivened the operation of s 5AA of the Sentencing Act.[14]
[14]DPP v Ooms [2023] VSCA 207 [17]-[68].
70Further, your personal qualities and support from others, especially your family, will, I find, ensure you do not reoffend in a similar way in future. You have some distance still to travel in the work that you must do to make this certain, but I am in no doubt that you have both the capacity and the structure to make this happen. You have spent your time in custody purposefully.
Structural matters
71This sentence must serve the purposes set out in s 5(1) of the Sentencing Act: you must be punished and personally deterred (though the role for specific deterrence I think is slight). Your conduct must be publicly denounced; you must also be rehabilitated. Importantly, the community, children in particular, must be protected. General deterrence is a big feature of this sentence. All PE teachers, all teachers, all adults, but particularly those with the custodianship of young people need to learn of this sentence and understand the following: first, detection is inevitable sooner or later; second, when you are detected, a long sentence in gaol is the only possible outcome; third, ostensible consent from the child makes no difference to that equation and is entirely irrelevant.
Standard sentences
72I take into account the maximum penalties in fixing the sentences; they indicate how seriously your offending is regarded by Parliament and by the community. I steer a course to this sentence by those maximum penalties. In addition, I am also guided by the standard sentences where they apply.
73Charges 1, 2, 4 and 6 have a 'standard' sentence of 6 years; Charge 10 has a standard sentence of four years. I have considered the 'rolled up' nature of the charges, the matters in mitigation, and the other features affecting moral culpability. I have done my best to synthesise all the relevant factors, including those standard sentences, and I will arrive at sentences on each charge that falls below the standard sentence after balancing the facts and the principles.
74The non parole period I set must be, unless I find that it is in the interests of justice to do otherwise, 60 per cent of the head sentence where the sentence includes a standard sentence.[15]
[15]Sentencing Act (n 6) s 11.
75I have had regard to a range of similar offences where the sentences have been imposed post the introduction of the standard sentence regime. No case is exactly like yours. Ms Jackson, who appeared on your behalf, prepared a table of what she said are comparable cases; I have considered those cases and others in this category, none is particularly alike to yours – but together they form a general sentencing landscape.
Serious offender provisions and totality
76You are to be sentenced as a serious sexual offender on Charges 3, 4, 5, 6, 7, 9, and 10. This being so, I must do two things with those sentences:
77First, I must regard the protection of the community as the principal purpose for which these sentences are imposed. There was no call for a 'disproportionate' sentence and I will not impose one.
78Second, the sentences on these charges must be served cumulatively upon each other and upon the sentences on Charges 1 and 2, unless I otherwise direct.
79These provisions do not however negate the requirement that I pay regard to the principle of totality; I do my best to resolve the tension between this principle and the obligations that I have pursuant to Part 2A of the Sentencing Act.
80I note here that your production of child abuse material is conduct substantially but not completely overlapping with the offending that you filmed. I am conscious of the need to avoid doubly punishing you for those offences.
81I also take into account that you committed the offending on Charges 8, 9 and 10 while you were on bail. Turning now to my disposition.
Disposition
82On Charge 1, sexual penetration of a child under 16, you are convicted and sentenced to three and a half years' imprisonment.
83On Charge 2, sexual penetration of a child under 16, you are convicted and sentenced to four years' imprisonment.
84On Charge 3, production of child abuse material, you are convicted and sentenced to seven months' imprisonment.
85On Charge 4, sexual penetration of a child under 16, you are convicted and sentenced to three and a half years' imprisonment.
86On Charge 5, production of child abuse material, you are convicted and sentenced to seven months' imprisonment.
87On Charge 6, sexual penetration of a child under 16, you are convicted and sentenced to four years' imprisonment.
88On Charge 7, production of child abuse material, you are convicted and sentenced to seven months' imprisonment.
89On Charge 8, persistent contravention of a Family Violence Intervention Order; you are convicted and sentenced to two years' imprisonment.
90On Charge 9, possession of child abuse material, you are convicted and sentenced to five months' imprisonment.
91On charge 10, sexual assault of a child under 16, you are convicted and sentenced to one year imprisonment.
92The following are my directions on cumulation.
93Charge 6 is the base sentence.
94I direct that:
· six months of the sentence on Charges 1 and 4;
· seven months of the sentence on Charge 2;
· one month of the sentences on Charges 3, 5, 7, 9 and 10; and
· eight months of the sentence on Charge 8
are to be served cumulatively upon each other, and upon the sentence on Charge 6, making a total effective sentence six years and eight months. I direct that you are to serve a minimum non-parole period of four years before you become eligible for parole.
Serious offender provisions
95I note for the records of the Court that on Charges 3, 4, 5, 6, 7, 9, and 10 you are sentenced as a serious sexual offender.
PSD declaration
96I make a declaration that you have already served 309 days imprisonment to be reckoned as already served pursuant to this sentence.
SORA
97Sexual penetration of a child under 16 is a Class 1 offence under Schedule 1 of the Sex Offenders Registration Act2004.[16] You must therefore be subject to mandatory registration as a 'registrable offender'.
[16](Vic).
98The reporting period for which you must report is the rest of your life pursuant to s 34(1)(c)(i) of the Sex Offenders Registration Act2004.
99I will ask Ms Jackson to give you some advice about your obligations pursuant to the Sex Offenders Registration Act after the conclusion of these proceedings.
Section 6 AAA
100I declare that had you not pleaded guilty but been found guilty after trial I would have imposed a sentence of imprisonment of eight years and seven months, with a minimum non-parole period of five years and four months.
101That completes the sentence.
Forfeiture order
102I understand that there was a forfeiture order that was sought. Is that still sought, Mr Batten?
103MR BATTEN: Yes, Your Honour. There is one matter to come out of that order and that is an item described as Exhibit 1, mobile phone, under the heading 'Informant Bruster'. That item can be excluded from the operation of the order. There is nothing in relation to that phone that connects to the offending.
104HER HONOUR: All right. With that exception, Ms Jackson is that order to be made without opposition?
105MS JACKSON: Yes, Your Honour.
106HER HONOUR: All right, thank you.
107I then finally just return to the application by the media for documents. My inclination, counsel, is to release the indictment and the summary of prosecution opening for plea. The record of interview wasn't formally before me as part of the plea, it was in the depositional materials but I have only referred to the parts of it that were quoted in the opening. So I do not intend to release that unless someone wants to submit otherwise.
108MR BATTEN: No.
109HER HONOUR: The victim impact statements I have quoted as part of my sentencing remarks and I don't think it is necessary that I release that material and there are privacy considerations I have about it.
110MR BATTEN: Yes.
111HER HONOUR: I have quoted the important sections onto the part of the sentence.
112MR BATTEN: Yes.
113HER HONOUR: Ms Jackson, I will hear you on a release of the summary of defence submissions for plea, but again I would say that those matters that are relevant to sentence have already been summarised in my reasons, and I would not generally release that material.
114MR BATTEN: Can I just say in relation to the summary of opening, Your Honour, of course that would need to be redacted.
115HER HONOUR: Yes.
116MR BATTEN: And of course there are particulars of locations and so forth in that material which, if that were published - - -
117HER HONOUR: Could be identifying?
118MR BATTEN: - - - that might lead to an identification of the victim in this case.
119HER HONOUR: I will release the opening but we will make sure that names and any specific locations are removed from that document prior to it being released.
120MR BATTEN: Yes.
121HER HONOUR: Does either counsel have anything to say further about that?
122MR BATTEN: Personal particulars, I think maybe date of birth and so on, would be part of that that would need to come out.
123HER HONOUR: Yes, yes, including dates of birth, location, names and any addresses..
124MR BATTEN: Yes. Thank you, Your Honour.
125HER HONOUR: All right. That completes this matter. I thank those who attended court and counsel for their assistance. Thank you, we will rise.
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