R v Kelly

[2025] NSWDC 281

District Court

New South Wales

Medium Neutral Citation:

R v Kelly [2025] NSWDC 281

Hearing dates:

18 December 2024 and 6 June 2025

Date of orders:

6 June 2025

Decision date:

06 June 2025

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of imprisonment of 5 years 6 months with a non-parole period of 3 years 2 months

Catchwords:

CRIME — Sexual offences — Sexual touching

CRIME — Violent offences — Assault occasioning actual bodily harm — In company — Detain for advantage

SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions

SENTENCING — Mitigating factors — Late plea of guilty — Considerable steps towards rehabilitation

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — General principles — Moral culpability — Objective seriousness

SENTENCING — Sentencing procedure — Findings of fact — Extent of reduction for guilty plea

SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Mental disorders — Significant progress on remand

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1

Devaney v R [2012] NSWCCA 285

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Lloyd v R [2022] NSWCCA 18

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305

Paterson v R [2021] NSWCCA 273

R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149

R v Herring (1956) 73 WN (NSW) 203

R v Millwood [2012] NSWCCA 2

R v MJ [2023] NSWCCA 306

R v Qutami [2001] NSWCCA 353

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704

R v Windle [2012] NSWCCA 222

Ryan v R [2017] NSWCCA 209

Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267

Tepaniav R [2018] NSWCCA 247

Category:

Sentence

Parties:

Damian David Kelly (the offender)
Director of Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
D Coulton (for the Crown)
H White (for the offender)

Solicitors:
Director of Public Prosecutions (NSW) (Crown)

File Number(s):

2022/262882

JUDGMENT – ex tempore revised

Guilty pleas

1. When he was initially before the Local Court and when he was arraigned in this Court and a trial date fixed, Damian Kelly said he was not guilty of the take and detain offence charged pursuant to s 86(3) Crimes Act 1900 (NSW) and an offence of sexual intercourse without consent charged pursuant to s 61I Crimes Act. About a month prior to the trial date, negotiations took place. It was agreed that the more serious second count was withdrawn and replaced by a sexual touching offence: Crimes Act, s61KD(1)(a). Formal guilty pleas were not entered until the day of trial.

2. It is accepted that for Count 1, the detain, there must be a reduction in the otherwise appropriate sentence of 10% to reflect the utilitarian value of that plea: Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D.

3. The defence submit, and maintain the submission, that a 25% utilitarian reduction is required for the aggravated sexually touch offence. I cannot accept that submission. Sections 25D(3) and (4) Crimes (Sentencing Procedure) Act provide:

“(3) Discount variations—new count offences

The discount for a guilty plea by an offender in respect of a new count offence is as follows—

(a) a reduction of 25% in any sentence that would otherwise have been imposed, if an offer to plead guilty was made by the offender and recorded in a negotiations document as soon as practicable after the ex officio indictment was filed or the indictment was amended to include the new count,

(a1) a reduction of 25% in any sentence that would otherwise have been imposed, if—

(i) the offender was discharged under section 68(2)(a) of the Criminal Procedure Act 1986, and

(ii) an offer to plead guilty was made by the offender and recorded in a negotiations document as soon as practicable after the ex officio indictment was filed or the indictment was amended to include the new count,

(b) a reduction of 10% in any sentence that would otherwise have been imposed, if paragraph (a) or (a1) does not apply and the offender—

(i) pleaded guilty at least 14 days before the first day of the trial of the offender, or

(ii) complied with the pre-trial notice requirements and pleaded guilty to the offence at the first available opportunity able to be obtained by the offender,

(c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a), (a1) or (b) does not apply.

(4) However, the discount in subsection (3) (a) does not apply if—

(a) the facts or evidence that establish the elements of the new count offence are substantially the same as those contained in the brief of evidence or other material served on the offender by the prosecutor in committal proceedings relating to the original indictment and the penalty for the new count offence is the same as, or less than, the offence set out in the original indictment, or

(b) the offender refused an offer to plead guilty to the new count offence that was made by the prosecutor in the committal proceedings relating to the original indictment and the offer was recorded in a negotiations document.”

4. I have to consider whether the facts that establish the elements of the new count are substantially the same as those contained in the brief of evidence or other material served. When the matter was before the Local Court, the facts referred to the “penetration” of the complainant’s anus by the handle of a frying pan. The facts now before me, as part of Exhibit B, note, “The handle of the frying pan connected with the outside of the anal passage without achieving any penetration”. Those words are important because they found the new second count, which has a lower maximum penalty.

5. No offer was made to plead to a lesser offence in the Local Court. That offer was only made a month or so before trial. The penalty for the new count offence is less than the offence set out in the original indictment. While the charges and maximum penalties differ the facts are, despite the important distinction relating to “penetration”, substantially the same. Applying the terms of the s25D(4)(a) I could only allow 10% for Count 2’s utilitarian value, and I will do so.

6. This finding does not mean the plea of guilty will not be taken into account in other regards. It indicates a willingness to facilitate the course of justice. It meant that the complainant was not cross-examined by Kelly’s lawyer.

7. Another matter was put from the bar table. In July 2024 the offender, through his solicitor, indicated that he would cooperate with police in attempting to identify an as yet unidentified co-offender. This was before the plea. The police declined that offer. The offer was conditional on an induced statement being made. That willingness to facilitate the course of justice will be taken into account. It indicates that he wishes to put his past behind him, but it is not a matter to which s 23 Crimes (Sentencing Procedure) Act applies.

Agreed facts

8. The offences occurred on Northcliffe Drive, Port Kembla. The complainant was known to Jasmine Agostini. He had previously been in a relationship with her. Kelly had met him in the months prior to the offence, which occurred 2 September 2022. Agostini was living in one unit, the complainant was visiting a friend in another unit. The complainant is a tattoo artist.

9. While he was at the other unit, he received a telephone call from Agostini asking if he wanted to purchase methylamphetamine. He agreed to go around to Agostini’s unit. He arrived. He knocked at the door. Agostini opened it and allowed him to step inside. As he did so, he was struck in the head by a black kettle bell weighing about 4 kilograms; it was being swung by Kelly. The impact knocked him to the floor. A third man, still unidentified, hit him with a frying pan.

10. After he fell to the ground, Kelly and the other man began punching and kicking him to the head and body. He was unable to get up. The two men pinned him down by placing their knees in his back. Kelly said to him, “I told you I’m not someone to fuck over”. Agostini was also speaking. The complainant called out, “Stop it Damian”.

11. Kelly and the other man removed the complainant’s shoes. They tied him up with an extension cord. He was laid on his stomach. Kelly used a knife to cut and remove his clothes. He was stripped completely naked. His phone was taken from him. Kelly said to him, “You like to fuck everyone over. We’re gonna fuck you”.

12. The other man had a frying pan. He was seen to lubricate its handle of it. He then then pushed it towards the complainant’s anus. The handle connected with the outside of the anal passage without achieving any penetration of the anus itself. The complainant resisted. He attempted to push the handle of the frying pan away using his hands which still remained tied behind his back. The unidentified male then held the handle to the complainant’s nose. At this point, Kelly placed his knee into the complainant’s back and said, “Do you know who’s after me at the moment?” The complainant replied, “I wouldn’t have a clue”. Kelly then cut the complainant’s right ear with the same knife that had been used to cut his clothes. Agostini then said, “I may have saved your life last week, but this might be different”. She and the other man left the unit.

13. A short time later they returned carrying some of the complainant’s tattoo gear. The complainant and Kelly then had a conversation with the complainant saying, “I’ll do anything to get out of this”. Kelly said, “How about $250 every Thursday …? If you’re late at all any days, I’ll come back and finish the job”. The complainant said, “I won’t be late”. Kelly said, “If you mention any of this to anyone when we leave, I’ll come back and finish the job”.

14. Eventually, one of the men removed the extension cords. Kelly then poured a bottle of disinfectant over the complainant. He said, “Since you like to piss and shit on people” before urinating over his complainant. He then poured a spirit containing alcohol over the complainant. No serious threat was made by the other man.

15. The owner of the unit who had been letting Agostini stay then returned home. She was unable to get the door open. But as she pushed it open, Agostini, Kelly and the other man left. The woman saw the complainant lying on the ground. He was completely naked, covered in blood, and shaking and crying. She found him a blanket and then helped him to the shower. After he had showered, she gave him some clothes. She noted he was struggling to breathe, he and could not keep his eyes open, although he was smoking a cigarette. She called triple-0.

16. Police and ambulance officers attended in response to the 000 call. The complainant was taken to to Wollongong Hospital. He was examined. His head and face showed abrasions, lacerations to his scalp, and significant bruising to his upper lip. He had multiple abrasions across his body, particularly around his lower back and hips.

17. Kelly was arrested on 3 September 2022 and has been in custody ever since.

Applicable principles

18. I have to identify all the factors relevant to the sentence, discuss their significance and ultimately make a value judgment: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51] (McHugh J). I will attempt to do so in as short a time as possible given the hour and the large amount of material that has been put before me.

19. One important aspect is to ensure that the sentence is proportionate to the crimes committed. It involves the Court engaging in an assessment of the objective seriousness of the offence. It is one important factor in setting the parameters of an appropriate sentence.

20. As long as the Court takes all relevant matters into account when sentencing and exposes its reasoning, error should be able to be avoided. It is not necessary to compartmentalise matters, but where there is a dispute, a judge is obliged to resolved it.

Factual dispute

21. When the matter came before me in December 2024 defence material raised a question of provocation. The matter was adjourned until today so that evidence could be called; including evidence from the complainant. The delay has caused people to reflect upon that submission and the matter was not pursued today. Although mention is still made in the defence submissions and some of the material tendered, as it was not pursued before me it is not an issue I have to resolve.

22. It was submitted that the offender’s mental state was relevant to my assessment of objective seriousness of the offence. It was asserted through the report of a psychologist, Mr Machin, that “the offender’s fragile and tenuous mental state impaired his judgment at the time of the offences … impulsivity might also have been a factor in view of his borderline personality features”. Today, reference was also made to a recent report of respected psychiatrist Dr Richard Furst. It was submitted that the offender’s underlying mental illness issues, an anxiety disorder, previously noted Post-Traumatic Stress Disorder, generalised worries, an acquired brain injury and a recurrent drug-induced psychosis, all operated to reduce the objective seriousness of the offence.

23. Care must be taken. All factors that bear on the objective seriousness of the offence should be taken into account (unless excluded by statute). Regard can be had to matters personal to the offender that are causally connected with or materially contributed to the commission of the offence, they can include a mental disorder: Paterson v R [2021] NSWCCA 273 at [29]; Tepania v R [2018] NSWCCA 247 at [112]; Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305 at [324]-[325] (Brennan J); Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at 55-56 [171]-[172] (Callinan J).

24. A person’s moral culpability or moral blameworthiness for the offence is a different concept. A person’s background and personal history may affect their capacity to reason, appreciate fully the wrongfulness of their actions or control their conduct. The relevant causal connection is between the background and the offender’s impaired socialisation and capacity to accord with social norms. It does not mean the person bears no moral responsibility for their offence but all such matters in their background must be taken into account when the sentence is synthesised. They are very relevant to the sentencing task: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571; R v Millwood [2012] NSWCCA 2 at [69].

25. Sentencing Courts are often referred to the helpful and succinct summary of McClellan J in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177], where his Honour said:

“Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced with a reduction in the sentence”.

26. His Honour there was referring to moral culpability not the offences objective seriousness. In R v MJ [2023] NSWCCA 306, Simpson JA cautioned that sometimes the search for a causal connection between the person’s background and the offence bypasses the larger issue and causes the Court to focus too narrowly on the offence.

27. Times have moved on since McClellan J’s important decision. I now read De La Rosa in this way; a mental illness or mental problems can result in an amelioration of an offender’s moral culpability with a consequent reduction in the need to denounce the crime.

28. I resolve the dispute this way. There is evidence before me in the report of Dr Furst that when he was 19 years old Kelly suffered a brain injury, but Dr Furst is very careful to place in parenthesis his reference to the “possible” impact of a brain injury. He does not purport to be qualified to make an assessment as to whether there was a brain injury or what its impact was. I cannot take into account the accused’s asserted acquired brain injury because on balance the impacts of it have not been established before me.

29. Similarly, when it comes to the question of Kelly’s behaviour that night and the possibility of his having a drug-induced psychosis. It is abundantly clear that if Kelly was not directly under the influence of drugs this night, he was affected by his long-term use and abuse of illicit substances, particularly methylamphetamine, and he was suffering some form of drug-induced psychosis. So much is established in the reports before me.

30. Courts have to be cautious in such matters. I cannot take into account intoxication with a drug; applying s 25A Crimes (Sentencing and Procedure) Act, common law principles and R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346. Ther reasons for Kelly’s drug induced psychosis, will be taken into account in this sentencing exercise, but when I come to consider the objective seriousness of the offence the evidence here does not provide a sufficient nexus or connection between a mental condition and the offending conduct. It does have other values to this sentencing exercise: Henry at [273]. To be blunt, it also made this young man more dangerous that night.

Objective seriousness

31. Turning now to the offences. Count 1, s 86 Crimes Act, has assault causing actual bodily harm and being in company as elements of the offence. They are not further aggravating features; a trap judges sometimes fall into when they too literally take into account s 21A(2) Crimes (Sentencing Procedure) Act. Additional care needs to be taken regarding the element of ‘intimidation’ because the reasons for it here, punishment and humiliation, are implicit in many offences of specially aggravated kidnapping.

32. I take into account here the period of the detention, about 45 minutes; the nature of the advantage sought, being to intimidate, that is, humiliate and frighten the complainant; the circumstances and the motivation, which was petty, in the extreme; the level of threat and the level of violence; the complainant was restrained, he was kept naked. I take into account the weapons used and the anguish and severe discomfort that he suffered. I note that there were three offenders present, the force of numbers employed against him, and there were additional humiliations, urination, alcohol was poured on him.

33. I can find no distinction between the role of the offenders. While there is a small amount of premeditation, there was no planning or preparation.

34. So far as the sexual touching is concerned, it is important to note that there was a sexual act, but it was not for personal sexual gratification but humiliation, as is obvious from the nature of the act. Although he did not engage in that act himself, Kelly was part of joint criminal enterprise. I can find no distinction here between the offenders. He was not the one who committed this particular humiliating act, but he committed many other humiliating acts on his complainant. And I have to take care because the advantage sought was the complainant’s humiliation or intimidation, which is an element of the other offence.

35. The facts and matters I have just referred to in that recitation of the facts indicate how serious these offences were.

36. The detain for advantage offence was a particularly serious example of its type. The sexual touching matter is more difficult to assess because it is the additional humiliating act that was critical, but it falls within the definition of that section.

37. I do not have the advantage of a Victim Impact Statement, but the absence of a Victim Impact Statement does not give rise to any inference the offence had little or no impact: Crimes Sentencing Procedure Act, s 30E. I am sure it did. It could not but have had an impact.

The offender

38. Kelly has a criminal record. He is not entitled to the leniency often given to first offenders, but it is important to note that while there are many drug matters on his record, there are no other matters involving acts of violence.

39. He was on bail at the time of the commission of this offence. Commission of an offence while subject to conditional liberty, the condition being he be of good behaviour, aggravates the penalty I must impose. He subsequently received a sentence of 2 years with a non-parole period of 1 year for other offences. Those sentences dated from 4 September 2022.

40. This sentence will be partially accumulated on that Local Court sentence. There is a need that there be some independent punishment for the Local Court matters which, I note, were an aggregate sentence.

41. I propose to start this sentence six months after he went into custody, being 1 March 2023.

42. Kelly did not give evidence, but he wrote a letter to the Court. He said:

“I have left a trail of destruction and disappointment in my wake, due to my drug use and my actions. I have let down my family, my daughter … and … the mother of my daughter.

I apologise unreservedly to the Court …

To [the complainant]:

I really am truly sorry for my actions that night, regardless of the history between us. I apologise to you unreservedly. I hope you can move on and find a level of peace in your life.”

43. He goes on to provide other material which is well supported by the documents before me about how he is trying, and has successfully, used his lengthy time on remand to prove that he can in the future on release be a law abiding member of the community.

44. His sister, a registered nurse with drug and alcohol treatment experience, gave evidence today. She noted that he had had a history of drug use and relapse into drug use over many years but had, with the family’s help, successfully completed a rehabilitation program. She says he made considerable improvement. He was effectively ‘clean’ for close to four years. She said that during the COVID-19 lockdowns his behaviour deteriorated. It was obvious to her that he was using drugs again. He lost track, she said, with his family and supportive members of the community.

45. She said, initially, after he went into gaol Kelly made considerable improvements. He was drug free. He was clearheaded. He put on weight. He was positive and future focused. She noted however that it has taken a long time to resolve these matters, that the lengthy time on remand, she said, has reduced his motivation and he appears to be losing trust in others.

46. As I noted earlier here are matters in the reports before me which go to the objective seriousness of the offences. No regard could be had to them unless they are supported by evidence on oath: R v Qutami [2001] NSWCCA 353. This was accepted by the defence. But all of the reports were admitted without objection and the opinions reached about Kelly and the relevant maters in his background and history seem soundly based. They were not based solely on self-reports, particularly Mr Machin and Dr Furst. But what is revealed in the reports is uncontroversial: Lloyd v R [2022] NSWCCA 18; Devaney v R [2012] NSWCCA 285 at [88]; Ryan v R [2017] NSWCCA 209 at [9].

47. Kelly’s personal history is relatively uncontroversial. He was born in Ireland in 1979. His parents are from Ireland but had previously lived in Australia and the family returned to Australia.

48. When Kelly was his 30s, he revealed that he had been sexually assaulted when he was ten years old. When he left school, he was able to get a job. He successfully completed an apprenticeship. He studied and was skilled in marital arts. He was also a recreational drug user. He married in 2006, and its deterioration led to him using alcohol excessively. He has spent time in the acute care mental health ward of Prince of Wales Hospital.

49. It appears that he started using illicit drugs, particularly methylamphetamine, to excess in 2012 and 2013, as there are reports of psychoses at that time. In 2014 he was arrested for drug supply matters and spent five months on remand. There is also mention of involvement with an outlaw motorcycle gang, but with his family’s help, and after a report from another respected psychiatrist, Dr Nielssen, he entered Adele House. He completed that rehabilitation program.

50. He then met his second partner. Their daughter was born in 2020. She has a number of significant disabilities. Her mother needs a second parent; and her daughter needs a father.

51. It would appear in about 2020 Kelly started using illicit drugs again. There were psychotic episodes in 2021. He came to live in the Wollongong area. He had met other drug users and was committing the offences that resulted in his appearance in the Local Court. About six months before these offences, he spent some time in a private psychiatric institution attempting to deal with drug-induced psychosis. He had been arrested for drug matters in May 2022. He was on bail when the incident occurred on 2 September 2022. He was arrested on 3 September 2022 and has been in custody since then.

52. There is only one institutional misconduct matter on his prion discipline record. I will ignore it.

53. Kelly spent his time on special management area protection (‘SMAP’). He was on remand since September 2022. While on remand he has completed an impressive number of programs. There are a number of certificates exhibited before me. Given the time, I will not go through them. There are TAFE certificates of attainment as well.

54. I often hear remand prisoners say there are no programs available. Well, as this case makes clear, there are programs available, but you need to be proactive. Kelly has been proactive in attempting to prove his worth to his family and others by doing everything he can while he is in custody.

55. There is also an impressive array of character references before me. They come from a number of people, many of whom have known him all his life. His mother prepared a list of traumatic events that have occurred during his life: Exhibit 1, Tab 2.9. His family has sought to as objectively as possible to put forward matters going in his background. Obviously, they care for and love him and have provided full support to him.

56. I have the benefit of the report of Mr Machin to which I have earlier referred. The history given to him is corroborated by all the material before me. He forms the view that Kelly displays symptoms of; Post-Traumatic Stress Disorder, Borderline Personality Disorder, Stimulant Use Disorder and Psychotic Disorder, drug induced, or medication induced. He notes the offence is uncharacteristically violent and refers to Kelly’s fragile and tenuous mental state as impairing his judgment. He notes that impulsivity is commonly associated with borderline personality features.

57. Mr Machin notes hardships in detention. On remand you are in maximum security. He has been classified A2 the whole time and subject to the SMAP protection regime. There is evidence that he has been subject to regular lockdowns, 95 days are calculated in the exhibit before me.

58. I do not underestimate the lived experience of gaol. Kelly has not had the benefit of being classified to a low security environment. During lockdowns, and SMAP prisoners and generally locked down, I understand, more often than general discipline prisoners, the public has to understand that you are kept in a cell with your other cellmate. That cell is small. That cell contains a toilet. You are fed in that cell three meals a day. As a prisoner once told me, “You eat where you shit”. It is not a matter that has to be taken into account, but prisoners are sent to gaol for punishment not to be additionally punished by the conditions of custody. Despite all this he has taken proactive steps towards his rehabilitation.

Moral culpability

59. The material before me about Kelly’s underlying mental conditions and the genesis for them, his consequent drug use, the traumas he suffered, particularly as a victim of sexual assault, all operate to reduce his moral culpability in the way I have earlier referred to. They require a reduction in sentence. Where mental health issues or trauma led to drug use and then chronic drug use, the circumstances that led to the problem cannot be ignored and they too go to reduce and offender’s moral culpability.

60. At a number of times in his past Kelly has made efforts, some successful, to deal with his underlying problems and consequent drug use, As the High Court noted in Bugmy, the underlying matters that operate to reduce moral culpability can be held in remission do not diminish over time and should always be given full weight: Bugmy.

Totality

61. There are two matters for sentence today. There was a single act of continuing criminality. There should be considerable concurrence. But the sexual touching offence involved one discrete act of additional humiliation, and it requires separate punishment. But there is considerable overlap of factors between the two offences, particularly motivation and their context and circumstances which require almost complete concurrence. Although I must fix a sentence for each matter and I have to indicate a non-parole period as it applies to the s 61KD offence.

62. All the material here, the plea of guilty, Kelly’s background require variation from the standard non-parole period. This includes my finding that the sexual touching matter, while not unique, as there is no such thing as uniqueness in criminal law, was not sexual as such but designed to humiliate.

63. There must be a finding of special circumstances here: Crimes (Sentencing Procedure) Act 1999 (NSW), s44(2). Kelly has during his time in custody demonstrated that he has good prospects for rehabilitation, they are very good if he remains drug-free. I also have to take into account the accumulation on the Local Court sentence. He has an extraordinary amount of family and community support, and he has been making every effort he can while in custody.

64. Those matters require that I allow more time in the community so that he can prove himself and be assisted in the community, however, the minimum term for which he should be imprisoned still has to properly reflect the seriousness of the crimes he committed: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

Submissions

65. I have the benefit of written and oral submissions from Mr White of counsel and Mr Coulton, Crown Prosecutor. They have spoken to them on the last occasion and today. I hope this judgment does justice to them.

Synthesis

66. There are matters before me that require the imposition significant sentence, but there are also matters which operate to mitigate the harshness of the criminal law. Giving weight to the conflicting purposes of punishment is what makes exercise of a sentencing discretion so difficult. A proper sentence should mark the Court’s view of the seriousness of the crime, it should let others know the retribution that will fall upon them if they do similar things: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222. As I have said, drug use, even drug psychosis, cannot be used as an excuse.

67. It is important to note that too heavy a sentence can result in a disproportionate level of punishment. Where there has been demonstrated progress towards rehabilitation in custody, there is a risk that if the offender becomes used to gaol or loses any hope of a normal life after the end of their term, if this occurs, they may lose motivation and the value of any steps already taken to promote their rehabilitation may diminish. But what is a proportionate sentence can often depend on the perspective of the observer, whether they are the victim, the community, the appeal court, or the offender and the offender’s family.

68. Mitigating factors will be given as much weight as I can in this case but, and it is an important ‘but’ here, while general deterrence must always be considered in such matters, in the circumstances of this case the fear of punishment did not prevent this offence. Courts have an obligation, however, to vindicate the dignity of a victim who was subject to such brutal degradation as was set out in the facts here. The Court has a duty to express the community’s disapproval of offending of this nature and the harm it causes individuals and the community in general. There is also a need to protect others from repetition of the offending. That can sometimes be affected by people understanding the severity of the punishment, but I am sure Mr Kelly did not think of a 25-year maximum penalty when he committed the detention offence, and many others still do not.

69. The community can also be impacted on positively by the successful rehabilitation of offenders.

70. There must be more time in custody, Mr Kelly. That time will be spent, I hope, productively, preparing yourself for your release.

71. I have to indicate individual sentences for the matters for sentence. Each of the indicated sentences will be reduced by 10% for the reasons I have outlined.

Orders

72. In relation to the detain for advantage, I indicate a sentence of 5 years and 4 months imprisonment. In relation to the sexual touching, I indicate a sentence of 1 year and 9 months imprisonment with a non-parole period of 11 months.

73. The term of the sentence is 5 years and 6 months. The aggregate non-parole period will be 3 years and 2 months. You will be eligible for release to parole on 2 May 2026. That is still another year. Your release to parole will be subject to a decision of the State Parole Authority. There will then be a parole period of 2 years and 4 months which means that the total sentence will expire on 2 September 2028.

74. To repeat: 5 years 6 months, minimum to be spent in custody 3 years 2 months, earliest possible release date 2 May 2026, parole period 2 years and 4 months.

High Risk Offender Warning

75. Count 2, although it is the less serious of the matters before me, means that I have to give you this warning which your solicitors and Mr White will repeat. It is unlikely to cause you any problems but Count 2 is a serious high risk category offence which means that I have to give you this warning.

76. If you do not cooperate with the authorities, if you are seen as a potential danger to the community when you come up for parole, or even after your sentence has expired, additional orders of an administrative nature can be placed upon you and restrict your behaviour and conditions out in the community or even require additional custody.

77. Given all the material before me, I am pretty sure that that warning is unnecessary and is unlikely to occur.

78. You have a considerable amount of support. You still have a year to go but take that support and I hope not to see you again.

79. Mr Machin’s report and Dr Furst’s report will go with the warrant to assist in Kelly’s parole.

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Decision last updated: 31 July 2025