IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	
Case No. CR-19-00883 & CR-21-00236

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
SHANE KELLY		

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JUDGE:	His Honour Judge Hannebery	
WHERE HELD:	Melbourne	
DATE OF HEARING:	14 October 2021	
DATE OF SENTENCE:	28 October 2021	
CASE MAY BE CITED AS:	DPP v Kelly	
MEDIUM NEUTRAL CITATION:	[2021] VCC 1691		

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords: 	Kidnapping - recklessly exposing an emergency worker to risk by driving - damaging an emergency service vehicle - damaging property – plea of guilty – general deterrence – specific deterrence 
Legislation Cited:	Crimes Act 1958; Road Safety Act 1986; Firearms Act 1996; Sentencing Act 1991
Cases Cited:	DPP v Arvantidis (2008) 202 A Crim R 300; Glascott v The Queen [2011] VSCA 109; Bugmy v R [2013] HCA 37; R v Verdins & Ors (2007) 16 VR 269
Sentence:	Total of 4 years and 6 months' imprisonment in respect of all offences for which you are presently before the court. I order a global non-parole period of 3 years and 6 months before becoming eligible for parole.

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr A. Grant 	Solicitor for the Director of Public Prosecutions 	
			
For the Accused	Ms S. Stanley 	Leanne Warren & Associates 	

HIS HONOUR:

Introduction
1	Shane Kelly, you have pleaded guilty to a number of charges contained on two indictments. 
2	On Indictment J13045670.3A, you have pleaded guilty to one charge of kidnapping, the maximum penalty for which is 25 years' imprisonment. 
3	Kidnapping is a category 2 offence. The court must impose a period of imprisonment, other than a combination sentence, unless an exception applies. An exception was not sought.
4	On Indictment J13045670.3B, you have pleaded guilty to:
(a)	one charge of recklessly exposing an emergency worker to risk by driving contrary to s 317AE(1) Crimes Act 1958, the maximum penalty for which is 10 years' imprisonment. This is a serious motor vehicle offence. The court must cancel any license held by you and disqualify you from obtaining a license for a time the court specifies;
(b)	one charge of damaging an emergency service vehicle contrary to s 317AG(1) Crimes Act 1958, the maximum penalty for which is 
5 years' imprisonment; and 
(c)	one charge of damaging property contrary to s 197(1) of the Crimes Act 1958, the maximum penalty for which is 10 years imprisonment. 
5	You have also pleaded guilty to the following related summary offences:
(a)	two charges of drive whilst disqualified contrary to s 30(1) Road Safety Act 1986, the maximum penalty for which is 2 years' imprisonment or 240 penalty units;
(b)	one charge of failing a blood test within 3 hours of driving a motor vehicle contrary to s 49(1)(i) Road Safety Act 1986, the maximum penalty for which is 12 penalty units and your license must be cancelled and you must be disqualified from driving for at least 6 months; 
(c)	one charge of possessing ammunition without a permit contrary to s 124(1) Firearms Act 1996, the maximum penalty for which is 40 penalty units. 
Summary of Offending 
6	A summary of Prosecution Opening was tendered on the plea and read aloud in court and is summarised as follows:
7	On Friday 5 October 2018, Travis Gold was at home in Melton South with his friends. They decided to go for a walk.  On this walk, Mr Gold noticed your vehicle, a black Holden Senator, parked in the driveway outside your house. 
8	You and James Slater came out of the house. One of you was carrying a machete. Mr Gold and his friends ran away. They were chased by you and Mr Slater. 
Mr Slater caught up with Mr Gold.  Slater kneed him to the face multiple times. You returned to your address. You got into the black Holden Senator and drove it to where Mr Slater and Mr Gold were. 
9	When you reached the pair, you got out of the car and held the machete to 
Mr Gold’s throat. You made a demand to “get in the fucking car now.” Mr Gold did this, and you and Mr Slater drove Mr Gold back to your address in Melton South.
10	When you returned to your address, Mr Slater dragged Mr Gold from the car, through the side gate and into the rear yard. By this point, Mr Gold was semi-conscious. Once in the shed, you told Mr Gold that he should not have stolen from you. Mr Slater then punched Mr Gold in the face and demanded he tell him his PIN code, which Mr Gold did. 
11	You and Mr Slater used the contact list in Mr Gold’s phone to attempt to call various people. One of these was Mr Abidi. You told him he had messed with the wrong person. 
12	After  a few hours, police then attended your address. In your shed, there was a CCTV monitor that enabled you to monitor police activity around your house. You and Mr Slater made Mr Gold wash the blood from his face. You forced Mr Gold into a red sedan parked in the driveway. Mr Slater said to Mr Gold “If you say anything about this, I’ll find out where you live”. 
13	You drove to the Melton Railway Station (Summary Charge 20, drive whilst disqualified).
14	You released Mr Gold near the Melton Railway Station.  You said to him, “If I see your face again I’ll kill you. I have your phone. I have your social media. I’ll find out where your family lives and I’ll kill them.” You then drove away (Charge 1, kidnapping).
15	Mr Gold was treated at the Sunshine Hospital. He had multiple abrasions to his face, a swollen left cheek and jaw, and a non-displaced fracture of the base of the zygomatic process of the left maxilla. 
16	On 16 October 2018, police executed a search warrant on your address in Melton South. You were not at home at the time. Police seized various items including a CCTV system and a notebook. 
17	On 21 November 2018, the black Holden Senator was parked at an address in Moonee Ponds. You had driven the vehicle to this address and were disqualified from driving at that time (Summary Charge 19, drive whilst disqualified). 
18	The registration plates had been altered in that the “1” had been altered to look like a “7”. Two unmarked police vehicles drove behind the vehicle to block it in. Police did not believe you were in the car at this time, however once they had completed parking they realised you were in fact in the vehicle. 
19	A police officer jumped out of the car. You reversed your vehicle quickly toward the unmarked police car and collided with it. A police officer was still inside the vehicle at the time of the collision (Charge 1, recklessly exposing an emergency worker to risk by driving, Charge 2, damaging an emergency service vehicle).
20	You drove forward and collided with the rear of the vehicle in front of you, owned by a Mr Trong. You also struck the side of the second police vehicle parked in order to block you in (Charge 3, damaging property). 
21	Police activated their lights and sirens. You placed your vehicle into reverse and again collided with the police vehicle, before going forward again and colliding with a second police vehicle. 
22	The police officer exited his vehicle, produced his firearm and yelled “police, stop.” You continued to move your vehicle back and forwards striking both police vehicles multiple times. 
23	Another police officer exited their vehicle and opened the driver’s side door and attempted to remove you. However, you reversed again and knocked this officer onto the ground with the driver’s side door. Part of the police officer’s body remained in the vehicle and he sustained an injury to his right knee. The driver side door struck a nearby tree, putting this officer at an increased risk of being crushed. 
24	You continued to rev the engine, however the police officer eventually apprehended you and removed the keys from the ignition before removing you from the vehicle and placing you under arrest. Police were required to use force to effect the arrest. 
25	You were subsequently taken to Royal Melbourne Hospital and a blood sample was taken from you. It was later analysed and found to contain methylamphetamine and cannabis (Summary Charge 24, fail blood test within 3 hours of driving). 
26	On 22 November 2018, your vehicle was searched and located on the floor behind the driver’s seat were four shot gun cartridges (Summary Charge 25, possess ammunition without a permit). 
27	You declined to be interviewed. 
Impact on the Victim
28	The impact on the victim is a relevant sentencing factor pursuant to s 5 Sentencing Act 1991. In this case no victim impact statements have been filed with the court.
29	I note, however that in sentencing your co-accused, Mr Slater, His Honour Judge Georgiou described the kidnapping as “brazen and no doubt terrifying”. I agree with those sentiments entirely.
Nature and Gravity of Offending 
30	Kidnapping is by its nature an extremely serious offence. Such is evident from its maximum penalty of 25 years' imprisonment.
31	The current offence of kidnapping is a serious example of that offence: 
(a)	The offence was motivated by your erroneous belief that, because Travis Gold was looking at your car, that he was attempting to steal from you;
(b)	The offence commenced almost immediately upon you forming that belief. It was motivated, it would seem, by anger and there was no planning evident; 
(c)	You brandished a machete at Mr Gold. You then pursued him down the street.
(d)	After Mr Slater had assaulted Mr Gold, you caught up with them in his car, and threatened Mr Gold with the machete, to compel him to get into your car.
(e)	Once back at your home, you and Mr Slater dragged Mr Gold, who was semi-conscious, from the car to the shed at the rear of your home. Mr Slater again assaulted Mr Gold.
(f)	You and Mr Slater held Mr Gold in the shed for 1 to 2 hours. 
(g)	You spoke to Mr Gold’s associates while he was being held prisoner. During that phone conversation you made serious threats against Mr Gold. 
(h)	Whilst you are not charged in relation to any assault on Mr Gold, his kidnapping was perpetrated in the context of the assaults you knew Slater had occasioned on him as well as the threats to his safety that you were a party to.
(i)	Mr Gold was only released when you had realised that members of the police had responded to the incident and were in the area.
32	Each of the offences which occurred subsequently on 21 November 2018 are also serious offences. 
33	General deterrence has been considered to take priority where public safety has been put at risk and offences are committed against members of the police force or other emergency services workers.
34	In DPP v Arvantidis, the Court of Appeal noted:
'It is a serious offence to assault police officers in the execution of their duty ordinarily requiring a significant element of deterrence in the sentences to be imposed. The courage of police officers in protecting lives and property is something upon which the community depends. It is incumbent on the Court to impose appropriate sentences to demonstrate support for the authority of police officers who undertake a difficult, and dangerous task in the execution of their duties in maintaining law and order. Ambulance officers, and others performing such essential public duties, are to receive a similar measure of support and protection. Where the offender knows or ought to have known that the victim was discharging a public duty of this sort, a more severe sentence will usually be imposed to deter such persons from violent assaults on them when performing their duties. But the question which arises on this appeal is whether the circumstances required the sentencing judge to adopt such an approach in fixing the sentences.'
35	Charge 2 is a rolled up charge which represents the risk caused to three members of Victoria Police who were on duty at the time the offence was committed.  You knew all of those members were members of Victoria Police at the time you committed the offence.
36	The incident was not brief.  It involved you making repeated attempts to drive your car away from the police members that were attempting to arrest you. You struck an unmarked police car, and the car of a neighbour that was parked in front of your vehicle, on a number of occasions.
37	Detective Senior Constable Snart in particular was placed at significant risk. At one point he was laying with part of his body in the passenger footwell of your vehicle. Later he fell to the ground between your car and a tree that was on the nature strip. The driver’s door came very close to crushing him against the tree, and his body was partly underneath the vehicle.
Personal Circumstances
38	You are now 49 years of age at sentence and were 46 at the time of offending. You are the second of four siblings, with an older brother and younger sister with whom you maintain a close relationship. You also have a younger brother who passed away.
39	You met your wife whilst a teenager and you have two children together. You are fortunate to have retained the support of your family and friends, as evidenced by the character references received from your wife, sister, and friend, Stephen Friame. Your family were present via video link for your plea hearing. Whilst on remand, your wife was diagnosed and undertook treatment for cervical cancer which is now in remission. I accept that your inability to support your wife during her cancer treatment would be a source of angst for you.
40	You were exposed to criminality from a young age. You witnessed family violence at the hands of your father towards your mother and siblings. You describe your father as an alcoholic and that he was “in and out of gaol” throughout your childhood. You were close with your mother who passed away when you were 17.
41	You attended Maidstone Primary School and enrolled at Footscray Technical School for secondary schooling, however you had only limited attendance beyond Year 7.
42	You started consuming alcohol and cannabis in your early teenage years. In your late teenage years, your drug use escalated and you began using heroin and methamphetamine. You have had issues with substance addiction your entire adult life. 
43	You were placed at the Turana Youth Training Centre at age 14 where you were detained a number of times throughout your teenage years. At Turana, you were the victim of sexual and physical abuse. You did not disclose this abuse until recently to family and psychologists.
44	You were diagnosed with ADHD as a teenager, and suffered from psychotic symptoms providing the basis for a diagnosis of schizophrenia in your twenties. However, recent assessments do not confirm the current existence of a psychotic illness. You fell from a building in 2015 causing significant head injuries and were  diagnosed with an acquired brain injury. You have long standing depression for which you currently receive medication. Counsel on your behalf did not seek any application of the principles outlined in Verdins.
45	You have ischaemic heart disease and had a heart attack in 2012 which required surgery. You had a stent and two balloons inserted and take medication daily for your heart condition. As a result of your fall in 2015 you also suffered significant damage to your left arm and shoulder. Your wrist was damaged during arrest for these charges and you are currently awaiting surgery which has been delayed due to COVID-19 restrictions. You have hepatitis C for which you have received treatment whilst in custody.
46	You have a limited employment history, including working as a jockey and tyre fitter in your twenties. Following your accident in 2015 you have been in receipt of a disability support pension. During your last period in the community you worked on a casual basis moving pallets.
Prospects of Rehabilitation 
47	You have admitted a concerning and lengthy prior criminal history including relevant violent priors. You have spent the majority of your adult life in custody.
48	You have 27 prior court appearances relating to over 238 separate offences.  It is worthwhile focussing on the details of some of your prior history, including the following:
(a)	Criminal damage (5 charges – Wangaratta County Court 16/12/04);
(b)	Unlawful imprisonment (3 charges – County Court 3/10/92 and 12/6/08);
(c)	Making a threat to kill (1 charge – County Court 3/10/92);
(d)	Reckless conduct endangering life (4 charges – County Court 14/12/94 and 2/10/01);
(e)	Negligently causing serious injury (1 charge – County Court 14/12/94);
(f)	Driving in a manner dangerous (1 charge);
(g)	Resist police (3 charges);
(h)	Armed robbery (1 charge – Wangaratta County Court 16/12/04);
(i)	Intentionally causing serious injury (1 charge – Wangaratta County Court 16/12/04);
(j)	Aggravated burglary (1 charge – Melbourne County Court 12/6/08);
(k)	Reckless conduct endangering serious injury (2 charges).
49	The circumstances of the kidnapping showed your behaviour to escalate to an extraordinary level of sustained anger within a very short time after observing 
Mr Gold near your car.
50	It is to be hoped that your willingness and capacity to engage in serious criminal conduct will diminish with age. It has been submitted on your behalf that your recent disclosure of experiences of sexual abuse, and the fact you have sought professional and personal support in coming to terms with those experiences, may provide some basis to conclude that your cycle of recidivism can be disrupted.
51	Whilst these developments are potentially positive, balancing all relevant matters and in particular your criminal history, you currently have poor prospects of rehabilitation.
Personal Background and Application of Bugmy Principles
52	Your childhood was marred by exposure to violence, substance use, and criminality. You entered into the criminal justice system at a young age and now report that you were the victim of institutional sexual abuse.
53	I accept as a matter in mitigation of sentence that your background of trauma and abuse reduces your moral culpability in the sense referred to by the High Court in Bugmy v R. As the Court stated:
'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 decision.'
54	However, the High Court also goes on to state that: 
'The inability to control the violent response to frustration may increase the importance of protecting the community from the offender.'
55	Given your significant criminal history, poor prospects of rehabilitation and the nature of offending in this matter, consideration must be given to the protection of the community from you. 
Plea of Guilty
56	You first indicated a plea of guilty to the offences comprising these indictments only after a contested committal hearing in which Mr Gold and each of the police members present on 21 November 2018 were subjected to cross-examination. 
57	That said, your plea has spared the time and resources that would otherwise have been expended on a trial, especially having regard for the pressures placed on court lists as a result of pandemic restrictions, your plea of guilty has substantial utilitarian value.
58	There have been significant delays that have occurred in this case. The offending occurred in October and November 2018. A contested committal proceeded on 
3 May 2019. The matter was listed for trial on 29 June 2020. As a result of the pandemic, that trial date had to be adjourned. The matter resolved on 20 April 2021 and you were arraigned on 23 April 2021. You have now served almost 
3 years on remand.
59	Even having regard for the relatively late resolution, the matter has been subject to substantial delay from the time of the initial trial date for reasons entirely unrelated to your conduct of the case. Whilst I do not regard this delay is of a nature that amounts to an additional punishment in and of itself, it does highlight the significant benefit to the court system flowing from your plea of guilty. It is uncertain when a trial for this matter would have been able to proceed, but it is likely to have been well into 2022 by which time you may well have served nearly 4 years on remand.
60	I note that it was understandably not contended on your behalf that remorse was a matter in mitigation to be considered in this case.
Impact of COVID-19 
61	A significant portion of the time you have spent on remand has been served in altered conditions because of the pandemic. The deprivations caused by pandemic restrictions have included but are not limited to restrictions to visits and reduced access to programs. You report that you have had outstanding issues relating to an injury to your wrist for which you have been unable to obtain treatment due to the restrictions.
62	It seems probable that the prison environment will continue to be subject to these restrictions for the foreseeable future. I consider as a matter in mitigation of sentence that conditions in custody have been and will remain more onerous than would otherwise have been the case.
Parity 
63	I take into account that your co-accused, Mr Slater, was sentenced to a period of 2 years and 2 months' imprisonment for your common charge of kidnapping. The prosecution accepted your offer to plead guilty to the charge of kidnapping on the basis that you did not assault Mr Gold. This was reflected in the fact that Mr Slater was also sentenced for the offence of intentionally causing injury and that you face no such charge.
64	Even noting that concession, it was not submitted by either party that on the charge of kidnapping that there was any basis to distinguish between the gravity of the roles either of you played in relation to that offence. Two paragraphs of the unchallenged prosecution opening in particular reveal that whilst you are not alleged to be a participant in actual assaults on Mr Gold, you personally used threats in order to perpetrate the kidnapping.
65	At paragraph 13 of the opening it states, “The accused got into his vehicle (i.e. the black Holden Senator sedan) and drove after the complainant. When he reached the complainant, Travis Gold, he got out of his car and threatened Mr Gold with the machete by holding it against his throat. He then demanded that Mr Gold, “Get in the fucking car now”. Mr Gold complied and got into the accused’s car because he was scared that he would be further harmed.”
66	At paragraph 22 of the opening it says, “As the accused released Mr Gold he said, “If I see your face again I’ll kill you. I have your phone, I have your social media. I’ll find out where your family lives and I’ll kill them”.
67	There are, however, some relevant differences between you and Mr Slater with regard to your personal circumstances. In your favour, Mr Slater was sentenced prior to the onset of COVID-19 and as such did not receive any consideration for the impact of pandemic restrictions on the prison environment. His offending also occurred only 3 days after the imposition of a Community Corrections Order on him.
68	Mr Slater’s plea of guilty was, however, entered at a significantly earlier stage in proceedings than was yours. Mr Slater is much younger than you. His criminal history, whilst substantial, was far lesser than yours. His prospects of rehabilitation, whilst guarded, were somewhat more positive than yours. In Mr Slater’s case, the learned sentencing judge also concluded that some moderation in the application of general deterrence was appropriate by reason of his impaired mental state.
69	All of these matters taken as a whole means it is appropriate for there to be some disparity between your sentence on the kidnapping charge and that imposed on Mr Slater.
Sentence Submissions 
70	I consider that general deterrence is an important factor in your case. The nature of your prior criminal history also means that specific deterrence has a significant role in sentencing. I must impose a sentence that expresses denunciation for your conduct and represents a punishment that is just in all the circumstances. I have also considered your prospects of rehabilitation as I have found them to be.
71	The prosecution referred to several cases where the courts have sentenced an offender for the offence of recklessly exposing an emergency service worker to risk while driving. As conceded by the prosecution, the cases are of limited use as direct comparison with the current case, but do provide some guidance in relation to the applicable sentencing considerations in such cases.
72	Section 16(3D) Sentencing Act 1991 requires that every term of imprisonment imposed on a person for an offence against s 317AE(1) and s 317AG of the Crimes Act 1958 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.
73	It is necessary for me to impose sentences that are appropriate for the individual circumstances applicable to each charge. I must also structure the sentence in a way that results in a total effective sentence that reflects the totality of the offending and has regard for the matters in mitigation. In this case, the interests of justice require that there be some cumulation to reflect the additional criminality represented by the incident of 21 November 2018, but that those orders for cumulation should be moderated in order to avoid a total effective sentence that is harsher than is required in the circumstances of the case.
74	Ms Sharpley, counsel on your behalf, appropriately conceded that a term of imprisonment was the appropriate sentencing disposition.
75	Mr Grant, on behalf of the Director, submitted that given the gravity of the current offences, and your significant and concerning criminal history, a sentence of imprisonment which involves the imposition of a head-sentence and non-parole period, was the only appropriate sentence available to the court..
76	Just before I commence reading out the sentence, Mr Kelly, be aware I am going to sentence on both indictments individually and then I will tell you the cumulation that will occur from one indictment to the next and then I will get to the end and say the total effective sentence, so as you are following you can understand to wait until the end when you will hear the total effective sentence.
77	OFFENDER:  Thank you, Sir.
Sentence 
78	Shane Kelly, I sentence you as follows:
79	On Indictment J13045670.3A, for the charge of kidnapping, you are convicted and sentenced to 3 years and 2 months' imprisonment.
80	In relation to Indictment J13045670.3B:
81	On Charge 1, recklessly exposing an emergency worker to risk by driving, you are convicted and sentenced to 2 years and 6 months' imprisonment.
82	On Charge 2, damaging an emergency service vehicle, you are convicted and sentenced to 3 months' imprisonment.
83	On Charge 3, damaging property, you are convicted and sentenced to 2 months' imprisonment.
84	On Summary Charge 19, drive whilst disqualified, you are convicted and sentenced to 1 month imprisonment.
85	On Summary Charge 20, drive whilst disqualified, you are convicted and sentenced to 1 month imprisonment.
86	On Summary Charge 24, fail blood test within 3 hours of driving, you are convicted and fined $500.
87	On Summary Charge 25, possess ammunition without permit, you are convicted and fined $250.
88	I direct that Charge 1, reckless exposure of emergency workers to risk by driving, is the base sentence in relation to the second indictment.
89	I direct that one month of Charge 2, damaging an emergency service vehicle, and one month of Charge 3, damaging property, be served cumulatively upon each other and the sentence imposed on Charge 1.
90	That makes a total effective sentence in relation to Indictment J13045670.3B of 
2 years 8 months’ imprisonment.
91	Turning to the orders for cumulation, I direct that 16 months on Indictment  J13045670.3B be served cumulatively upon the total sentence on Indictment  J13045670.3A.
92	For clarity, the orders for cumulation are upon each other and upon the sentence imposed on Indictment J13045670.3A.
93	That results in a total of 4 years and 6 months' imprisonment in respect of all offences for which you are presently before the court.
94	I order a global non-parole period of 3 years and 6 months before becoming eligible for parole. 
95	I declare pursuant to s 6AAA of the Sentencing Act 1991, that but for your plea of guilty I would have imposed a total effective sentence of 6 years' imprisonment with a non-parole period of 4 years and 9 months.
96	Pursuant to s 18(4) of the Sentencing Act 1991, I declare you have spent 1072 days in pre-sentence detention, up to and including yesterday, 27 October 2021, and that this time is declared to have been reckoned as served.
97	The prosecution have made application for forfeiture of the registration plates found on the black Holden Senator and the shotgun cartridges. That application was not opposed and I make the order in the terms sought.
98	On Charge 1 of Indictment J13045670.3B, and Summary Charge 24, I order that any drivers licence you hold be cancelled and you are disqualified from holding another licence for a period of 48 months from today’s date. 
99	It should have only been the shotgun cartridges, not the registration plates.  Is that right?
100	MR GRANT:  Yes, that is correct, Your Honour.
101	HIS HONOUR:  In terms of the maths no one has picked up any error with that?
102	MR GRANT:  No, Your Honour.
103	MS STANLEY:  No, Your Honour.
104	HIS HONOUR:  The PSD, 1072 days, is that correct?
105	MR GRANT:  Yes, Your Honour.
106	HIS HONOUR:  Thank you all for your assistance and I will adjourn the court.
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