Director of Public Prosecutions v Kelly
[2019] VCC 2012
•29 November 2019
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT GEELONG
CRIMINAL JURISDICTION
CR 19-01682
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRAVIS KELLY |
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| JUDGE: | HER HONOUR JUDGE HAMPEL |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 29 November 2019 |
| DATE OF SENTENCE: | 29 November 2019 |
| CASE MAY BE CITED AS: | DPP v Kelly |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 2012 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Harper | Office of Public Prosecutions |
| For the Accused | Mr L. W. G. Hartnett | Bowman & Knox |
HER HONOUR:
1 In March this year, you, Travis Kelly, had been living back in the community again for approximately 18 months, having completed a sentence of four years and six months imprisonment with a non-parole period of two years and six months imposed by Her Honour Judge Morrish. That meant that, not only had you been back in the community for about 18 months, but that you were subject for a period of five years as a result of that sentence to a prohibition on having a firearm. At 9:50am on 7 March 2019, you were at home with your partner when a car came into the street and stopped in the middle of the street. One of the two male occupants of the car got out and fired two shots at your house.
2 One of the bullets hit a car that was parked in your driveway. The second bullet went through the window of the master bedroom at the front of the house and into a wall. You were apparently in the bedroom with your partner at the time the bullets were fired. CCTV footage from a neighbouring house shows that car driving away and within moments you running out of the house. You had, in that short time, armed yourself with a semi-automatic handgun which you had apparently kept in a spare bedroom in the house. You discharged the firearm in the direction of the departing car, firing off one shot. The CCTV footage clearly shows you running out of the house, pointing at the departing car, firing in its direction and then running back into your house. The sound of the shot can be heard distinctly in that footage.
3 It was broad daylight, nearly 10 o'clock on a weekday morning. Your house was in a court, in a suburban residential area with other houses and other people in the vicinity. That gives rise to a charge of conduct endangering life, to which you have pleaded guilty. As a result of the gunshots that were heard, police were called. Given that you had run out of your house with a firearm and fired a shot in the street, the Special Operations Group attended.
4 On request by them, you came out into the street and were then arrested. That allowed police to process the scene and they found bullet casings from the two shots that had been fired at your house. You were taken back to the police station to be interviewed and, in the course of the interview or during a suspension of the interview, you told the police where the firearm that you had used was. They went back to your house and found it in the spare bedroom. There was a loaded cartridge in the chamber and a magazine containing a number of cartridges. That gives rise to the charge of being a prohibited person in possession of a firearm to which you have pleaded guilty.
5 You told the police in the course of the interview that you realised when you heard the two bangs outside the house that someone had fired shots into your house. You said that you ran to the spare bedroom and grabbed a semi-automatic pistol that you had hidden there and ran out the front, and, noticing a car driving away from your house, fired at it. You admitted you fired in the direction of the car. You said you aimed it in the air over the vehicle and that your intention was to fire a warning shot. The foolhardiness of that is apparent just from that bare description.
6 You told police that you had had the pistol for about two months before you shot at this car. You said you acquired it because it was too good an opportunity to pass up, whatever that might mean. You declined to identify the person you had purchased it from but told the police it cost you a bit. You acknowledged that you were angry and that was why you had fired at the car. You acknowledged, when asked, that it was wrong and you acknowledged that you appreciated that you had placed others in danger by discharging the firearm in the circumstances in which you did.
7 The offence of conduct endangering life carries a maximum sentence of 10 years' imprisonment. So does the offence of being a prohibited person in possession of a firearm. It is clear that these offences of themselves are serious, but it is also clear that the circumstances of the commission of them are serious. Factors pointing to the seriousness of the first charge of conduct endangering life include the fact that this was a retaliatory shot when two shots had been fired already at your house. The timing, as you described it, and what is seen on the CCTV shows that you responded immediately, without making any assessment as to what had happened. You did not take time to stop, reflect or consider.
8 The firearm was clearly easily accessible to you and it must have been loaded, given the short space of time between the firing of the two shots at your house and your emerging from your house with the loaded firearm and shooting. This was a house occupied by you, your partner and a seven year old child. The house that you were in was in a residential area. The time of day meant that it was highly likely that there were other people in the vicinity. And whilst it might have been reasonable to infer that the shots came from the car that you saw departing, that was not necessarily entirely clear either.
9 Although you said your intention was to fire a warning shot over the roof of the car, to fire the pistol as you did, in those circumstances, at that distance, carried a significant risk that it would go into the car rather than above it or would go somewhere else where members of the public, including children, may have been. You also told police that you understood that the two shots fired at your house were aimed at you. That means that you, in your mind, considered it to be a targeted, not a random, attack. Retaliatory firing in those circumstances adds to the gravity of the offending and the danger that you posed by letting loose the firearm in the circumstances you did.
10 It is also serious because of your previous convictions and because of what, on the material, I was told about the sort of life you were living or the circles in which you were moving. I will come back to that later. So far as the charge of being a prohibited person in possession of a firearm is concerned, that clearly also is a serious example of its type. The firearm was a semi-automatic pistol. It was highly likely, as I have said, to have been loaded at the time that you picked it up. It was found when police went to your house, in a bedroom drawer, with extra ammunition and with a bullet in the chamber.
11 The charges which led to your being sentenced to a term of imprisonment by her Honour Judge Morrish were also serious, and included charges of trafficking and recklessly causing serious injury. There is very good reason why Parliament prohibits people who have served terms of imprisonment from possessing a firearm for a period after the expiration of their sentence. To have a gun of that type, loaded, easily accessible and unsecured in a house occupied, not only by you, but by your partner and a child, adds to the gravity.
12 It is clear therefore that, subject to considerations personal to you, general deterrence, denunciation and just punishment are important sentencing factors. Firearms pose a significant risk to our community and firearms in the hands of impulsive people who believe they are at threat from others armed with firearms are a particularly dangerous combination.
13 Dealing then with your personal circumstances. You are now 32. You come from an intact, loving and supportive family and are extraordinarily fortunate, as your counsel, Mr Hartnett, acknowledged, to continue to have the support of your mother, your sister and your father. You mother and your sister have been present in court today and, from the materials before me, your mother has continued to visit you whilst you have been on remand in respect of this and has supported you throughout your checkered life.
14 A psychological report prepared by the psychologist Gina Cidoni suggests that you are of normal, but relatively low intelligence. You certainly managed to complete primary and secondary schooling without difficulty and you showed in your early years after school and again in the time after your last release from prison, after the last sentence, that you are capable of holding down regular employment and acquitting yourself well in your job. So there is not any intellectual deficit that either bears on the assessment of the seriousness of the offending or the sentence.
15 I was told that, in your teenage years, you were diagnosed as suffering from ADHD and for a number of years were prescribed dexamphetamine. That appears to have assisted you to be able to complete your schooling and then to engage in meaningful employment. Ms Cidoni does not indicate that there is any psychiatric illness or psychological condition which explains the offending or which would interfere with your rehabilitation.
16 The trajectory of your life from your early 20s appeared to change from that of a young man leaving school, starting work, working well, earning, saving and engaging in competitive lawn bowls at a high level into one that descended into amphetamine or methamphetamine abuse, criminal behaviour and criminal associations. Your life from your early 20s until now, so for the last 10 years, has been one that can be described as one of squandered opportunities rather than fulfilling your potential.
17 I take into account the following matters, as counting in your favour to reduce the sentence otherwise appropriate. You made full admissions to the police, apart from declining to identify who you bought the gun from or who you thought might have come to shoot at you. You otherwise made full admissions to the offending and assisted the police to find the firearm in your home. You came out of the house when requested by the Special Operations Group and surrendered yourself to them, hence ensuring the safety of your partner inside the house, neighbours, passers-by and those police who had been deployed to arrest you.
18 Consistent with the full admissions you made in your recorded interview, you indicated your intention to plead guilty at an early stage and having done so, the matters proceeded expeditiously to this court. I have already mentioned your family. You are fortunate indeed to have the continued love and support of your mother, your sister and your father, with whom I am told, although very disappointed in your behaviour and previously estranged from you, you have now reconciled. A measure of the strength of the support from your family is not just the presence of your mother and sister here today but also the fact that, despite this offending and despite your history over the last 10 years, they have again made it clear that you can come home and live with them upon your release.
19 They have previously permitted you to live with them when you have been released on bail on other occasions. The capacity to have a home, a loving and supportive family and a pro-social family is a very significant and powerful factor that counts in your favour. Many people are not so fortunate. They either do not have good role models as parents and siblings or they have parents and siblings who have washed their hands of them. You have people who model good behaviour and who are prepared to continue to give you love and support whilst not, it would appear, condoning your criminal behaviour.
20 However, I note that the existence of family support and the existence of the relationship that you were in at the time of this most recent offending did not stop you from committing the offences that bring you before this court, nor, it would appear, did it stop you moving in a milieu where access to firearms was easy and normalised, where you felt the need to be armed, and where you immediately assumed that the shots fired in your street were directed at you.
21 Since your last release from imprisonment you have shown yourself prepared to commit to work and to hold down a job. Obviously from the letter that you wrote and that was provided to me in the course of the plea, you are very proud of your ability to obtain that employment, to maintain it and to be able to provide properly for yourself, your partner and the child. Since your remand in respect of these offences, you have not only engaged in work but you have shown yourself to be sufficiently trustworthy to be engaged as a billet. Again, those matters count in your favour. You clearly have the capacity for work, and to maintain a sustained commitment to it.
22 I have already mentioned the fact that in your teens and early 20s you were a committed and talented lawn bowler. After you were released on parole on the last occasion, it appears you re-engaged with the lawn bowls community. Testimonials spoke of your talent, your enthusiasm for the game, the positive effect you have on those around you and your willingness to teach others less skilled. All of that speaks also in your favour. It shows that you can take significant and sustained steps to engage in a pro-social life.
23
It is also interesting to note, and was pointed out in the testimonial provided by Mr Gillette, that generally those engaged in lawn bowls are of a much older demographic than you. Generally one would not think of lawn bowls clubs as being hot beds of methamphetamine use. So that, together with
re-engagement with your family after your last release from gaol and what appeared to have been, at the time of the commission of the offence, a stable 16-month relationship with your then partner, and your capacity to maintain employment all indicate clearly you have the capacity, not just the desire to engage in lawful pursuits and to lead a normal, law abiding life and to be able to sustain that.
24 You are still relatively young at 32 and hopefully now, as you mature and get into your 30s, at a stage of life that you will continue to mature and to grow out of and away from the life that you lived throughout your 20s. As Mr Hartnett acknowledged, it is up to you. This is a time of life when often young men move away from the impulsive criminality of their earlier years and pick up from where they should have been 10 years earlier.
25
So, all of those matters count in your favour when assessing your prospects for rehabilitation. Despite those matters however, as Mr Hartnett himself acknowledged, your prospects for rehabilitation are best described, as
Ms Harper did, as guarded. You have a number of previous convictions. I have noted the matters that brought you before her Honour Judge Morrish in 2013. Then you received a total effective sentence of four years and six months with a non-parole period of two years and six months for charges of recklessly cause serious injury, trafficking, handling stolen goods and dealing in property suspected of being proceeds of crime, as well as uplifted or related summary charges of possessing a drug of dependence, possession of cartridge ammunition without a license or permit and possession of other ammunition.
26 You have previous convictions in the Magistrates' Court for dishonesty and drug-related offending from 2012 to 2013. It is a significant list of convictions for somebody of 32. The matters that brought you before her Honour Judge Morrish show that you moved quickly from relatively minor offending into much more serious offending. Your mother gave evidence on the plea before her Honour Judge Morrish. She was confident that you had learnt from your experience and that you were unlikely to reoffend. Sadly, as these events show, that is not the case.
27 I was told, and Judge Morrish was told, that you have a history of substance abuse. At paragraph 26, her Honour said this:
‘Unfortunately, in 2009 you mixed with a crowd who were using amphetamines and you yourself started using. You were then aged 22. Within two years your habit had become out of control and you were using methylamphetamine. This led to a decline in your functioning. At times you were using up to five grams per day. You were unable to sustain your work, you left it and started drawing on your savings to support your habit. When you exhausted your savings you commenced trafficking in order to support your habit. Your first prior convictions must be seen in this context.’
28 Her Honour was told that you had made significant inroads in addressing your substance abuse by the time she came to sentence you. I was told that, during the time that you were serving the sentence imposed by Judge Morrish, you were prescribed Suboxone in custody. When I asked Mr Hartnett why what was, as the evidence before Judge Morrish and Mr Hartnett's instructions indicated that your problem seemed to be with ice, not heroin, Mr Hartnett was unable to assist other than to float the possibility, and that is all it can be, that maybe you were able to take advantage of the system when first in custody so as to obtain Suboxone.
29 You were released on parole but were returned into custody when you returned a positive drug test. Again, as I understand it, that was to amphetamine or methamphetamine rather than a heroin-based substance or substitute. In any event, that meant that you went back into custody, served a significant part of that unexpired period of parole and were again then released on parole before your sentence expired. On the second occasion you successfully completed your parole period. I was told that, since your second release on parole, you have remained largely drug-free in the community, while remanded in respect of these offences, you initially recommenced on Suboxone. I am told you have now been transitioned to methadone from Suboxone.
30 I am told also that you have had six drug screen tests since your remand on this occasion and none of them have tested positive to any illicit substances. That is consistent with your engagement as a billet.
31 I was told by Mr Hartnett that you found it difficult on your release after the last sentence to avoid your old associates. That certainly seemed to be the explanation for your understanding of the motivation of those who were minded to shoot at your house. But there is nothing in the material before me to suggest that drug use by you played any role in this offending and it seems to me, when considering what lifestyle factors to take into account when assessing your risk of future offending, that they seem to be more to do with your association in a criminal milieu rather than associated with your substance abuse.
32 So, the materials before me do not suggest that substance abuse played a role in this offending, nor do they suggest that substance abuse stands as a significant impediment to your rehabilitation generally. It doesn’t appear that drug rehabilitation conditions need to be a significant component in the sentence.
33 In her report, Ms Cidoni noted results on testing which revealed that you have poor impulse control, poor judgment, elevated paranoia and persecutory ideas. You report feeling misunderstood and abused with projection of blame and suspiciousness. The results also revealed extremely low ego strength, meaning that you can be unreliable, egocentric, irresponsible and have difficulty learning from experience or planning ahead. They seem to me to be matters much more necessary to address in order to reduce your prospects of reoffending and substance abuse.
34 But it is clear from the circumstances of the offending, from your previous convictions and from those findings of Ms Cidoni that I have just set out that specific deterrence and protection of the community both have a role to play in sentencing you. I have come to the view that ‘guarded’ is the correct way to describe your prospects for rehabilitation, notwithstanding those positive factors that I have identified. The sentence clearly still must be structured in order to encourage your rehabilitation. I am also mindful of the fact that the sentence must avoid double punishment and I have sought to distinguish, in my articulation of the seriousness of the offending in respect to the two offences, them from the each other.
35 Clearly the principles of totality and parsimony also apply and, although you are not entitled to have encouragement of rehabilitation weigh as the most important factor in your favour given your age and your priors, I am of the view that, despite your guarded prospects, the sentence should indeed work on assisting you to concentrate on those positives that I have identified and to encourage your prospects for rehabilitation. In some ways it is even more important to encourage prospects for rehabilitation in those whose prospects are guarded than in those whose prospects are already very good.
36 Mr Hartnett submitted that a combination sentence should be imposed, that is a term of imprisonment followed by a community correction order. I disagree with that submission. I do not consider that it is an appropriate way of addressing either the punitive or the rehabilitative purposes of sentencing. As I have noted, this is not a case where substance abuse, mental illness or a psychiatric or psychological condition are significant underlying causes of the offending and which could properly be addressed by a combination sentence. In those sorts of cases a community correction order can assist in dealing with the underlying reason for the offending and address rehabilitation and specific deterrence. And this is not a case where unpaid community work would be appropriate as part of a punitive element of a sentence, nor is it necessary to imbed workplace skills and discipline.
37 You have got an established work record and want to return to work. In the letter that you wrote, you expressed a fear that parole could interfere with your employment on your release. A community correction order is probably more likely to interfere with return to work than parole, given the program conditions as well as supervision conditions and the prospect of unpaid community work conditions that apply to a community correction order. Parole supervision is more likely to be able to work around your work commitments and to be a lighter touch and, as I said to Mr Hartnett, I feared, given your history, that the imposition of a community correction order would be setting you up to fail. It would certainly achieve a short-term goal of a certain release date but in my view you are at considerable risk of breaching a community correction order, either by reoffending, non-compliance or both.
38 On the other hand the imposition of a head sentence with a non-parole period, although it does not give you the short-term benefit of a definite release date, brings with it a known end date and the benefit of more flexible supervision post-release. It also allows you to demonstrate, whilst you continue your sentence in custody, your capacity to manage on the outside. Your preparedness to engage in pre-release programs is something that clearly is taken into account in assessing your prospects for release upon parole. The flexibility of parole supervision in my view is likely to stand you in much greater stead and reduce the risk of extending the sentencing for this offending beyond the notional term of a combination sentence of a term of imprisonment and a fixed-term CCO for the reasons that I discussed with Mr Hartnett.
39 But more fundamentally, I do not consider the needs of general and specific deterrence, denunciation and just punishment, seen against those guarded prospects for rehabilitation can be achieved within the limitations of a term of imprisonment of less than 12 months, as part of a combination sentence. In my view, the objective seriousness of the offending and your personal circumstances require a sentence greater than that. Could you now please stand.
40 Travis Kelly, on the two charges to which you have pleaded guilty, you are convicted. On Charge 1, you are sentenced to be imprisoned for a period of four years. On Charge 2, you are sentenced to be imprisoned for a period of three years and I direct that 12 months of that be served cumulatively upon the sentence on Charge 1. That makes a total effective sentence of five years' imprisonment and I fix the period of three years as the time that you must serve before being eligible for parole.
41 I declare that you have spent 267 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served. I declare that pursuant to s 6AAA of the Sentencing Act that, but for your pleas of guilty, I would have sentenced you to a term of imprisonment of eight years and fixed a non-parole period of six years. Do the sentences that I have pronounced reflect what I have said I intended to do?
42 MS HARPER: Yes, your Honour.
43 HER HONOUR: Everything correct?
44 MS HARPER: Yes, your Honour.
45 HER HONOUR: Thank you. Can you please remove Mr Kelly. Adjourn.
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