Director of Public Prosecutions v Kelly

[2017] VCC 830

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01113

DIRECTOR OF PUBLIC PROSECUTIONS

v

DUNCAN KELLY

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 June 2017
CASE MAY BE CITED AS:	DPP v Kelly
MEDIUM NEUTRAL CITATION:	[2017] VCC 830

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms B. Yildiz
For the Accused	Mr N. Power

HIS HONOUR: 

1Duncan Kelly, you have pleaded guilty to the following offences:

·    Seven counts of theft, each carrying a maximum period of imprisonment of ten years;

·    Armed robbery, which carries a maximum period of imprisonment of 25 years;

·    Intentionally causing injury, which carries a maximum of 10 years imprisonment; and

·    Negligently dealing with proceeds of crime, which carries a maximum of five years imprisonment.

2You also pleaded guilty to summary offences of unlicensed driving, which carries a maximum of 25 penalty units or not more than three months imprisonment; resisting a police officer which carries a maximum of 60 penalty units or imprisonment for a maximum of six months; wilful damage which carries a maximum of 25 penalty units or six months imprisonment; two counts of unlawful assault which each carry a maximum period of imprisonment of three months or 15 penalty units; and unlawful entry or trespass which carries a maximum of 25 penalty units or six months imprisonment.

3The Crown tendered a Summary of Prosecution Opening for plea as Exhibit A.  A summary of your offending is as follows:

4Your offending occurred over an 18 day period between 12 March to 30 March 2016.  On 12 March 2016, you stole two sets of safety glasses and a cordless drill from Bunnings Keysborough.  As you left the store you were intercepted by a security officer.  You charged at him and raised your fist in a threatening manner. You said to the officer and another Bunnings worker, “I’m going to smash you guys. I’ll be surprised if you don’t get shot”.  You were too aggressive for them to hold you and you left the area in a stolen Porsche Cayenne four-wheel-drive.

5On 14 March 2016 you stole two nail guns from Hastings Bunnings and you drove away from the store in the stolen Porsche. That is the charge regarding the theft of the car

6On 18 March 2016 you stole two nail guns from Frankston Bunnings.  At the door you were challenged by a female worker who asked if you had paid for the items.  You forcefully shoved the nail guns into the worker’s chest causing her to fall backwards.

7On 19 March you stole a motorbike from the backyard of a business called Port Phillip Mowers and Scooters in Rosebud.

8On 30 March 2016 you entered the backyard of a house in Rosebud and stole various items of small value from the shed.  You then damaged a garden tap as you tried to get over a fence.

9Your most serious offending occurred later that night on 30 March.  At about 7.55 PM, you entered the garage of a house in Paterson Street, Rosebud.  
The elderly owner of the home saw you in the garage and told you to “get out”.  
He saw you had a computer under your arm and he said to you “just take it and go”.  You were holding a screwdriver in your hand and you said to the elderly man that you would “cut him”.  You were given every opportunity to leave the premises with your stolen item. Instead, as I have described, you threatened him.

10For no reason at all, as he had not advanced on you, you punched him to the face causing him to fall over.  He was treated for a possible fractured nose, black eyes, a laceration to his lip and a cut to the palm of his hand.  When he was found by his wife as you stood over him, he was covered in blood.

11Punching this old man as you did was a cowardly and gratuitous act of violence.

12Your next actions deserve equal condemnation.  As your victim was on the floor of the garage, you were still holding the screwdriver and you demanded his car keys.  The victim’s wife appeared and you said to her, “I’m sorry but I’ve got to live somehow” but your demeanour quickly changed.  As you drove away in their car, you yelled aggressively, “I’ll be back to take all you’ve got”.

13Your words were designed to, and had, having regard to the victim impact statement, the effect of causing the victim and his wife to worry for their future safety.  In the meantime, the police found the motorbike that you had earlier stolen together with items of stolen property.

14Still later on the same evening of 30 March 2016, you entered the Rosebud Central Woolworths supermarket wearing a hat and body armour.  You asked staff at the service desk if they had seen a friend of yours “as he would have blood on him”.  You went down the aisles, stealing food and other items including a portable speaker.  You walked up to one of the registers and kicked open the gate.  A staff member approached you and you hit him in the chin with the bluetooth speaker.  When you were approached by the store manager, you stated that you would “get your mates and a firearm or shotgun and come back”.  You went out to the car park with the store manager again and he asked you to come inside to pay for the items but you told him that you had had the worst day.

15You were arrested by police at 11.05 pm that night. You were extremely aggressive to police and you resisted arrest.  The police had to use capsicum spray to subdue you.

16In the record of interview conducted with police the following morning, you were asked about your actions in the garage when you punched the victim and stole his car.  You told police that you have respect for old people so you gave him four warnings.  Disturbingly, when you were asked about the victim’s wife you said that you had said sorry to her and that “if you wanted to, you could have chucked them in the boot and taken everything.”  It seems that you have some distorted view that you treated your victim well.

17You were remanded in custody after your arrest. You have now served 161[1] days pre-sentence detention, exclusive of today.

[1] The number of days of pre-sentence detention was amended, on application by the Prosecution, at the County Court by Judge Lyon on the 28^th June 2017.

18As I have mentioned, the victim to the armed robbery and assault made a victim impact statement.  After your assault, the victim was treated in hospital and suffered from delayed concussion.  He states that he has had a considerable worsening of his short-term memory and a heightened sense of insecurity since your attack.  Such was the fear that you caused that the victim changed the locks on his home and installed a new security system for his house.  There is no doubt that your despicable conduct has had a lasting effect on the victim and his wife.

19I turn to your personal circumstances.

20You are 25 years of age and you were born in January 1992.  You come from a large family from the North Island of New Zealand.  Your upbringing was strict, and your family was poor but your counsel reported that it was a happy time for you.

21You completed your schooling at aged 17 and started work as a butcher, before briefly attending a TAFE in Auckland as you wanted to become an artist.

22At aged 19, in 2011 it seems, although it varied between 2010 and 2011, you moved to Australia in search of work.  You found work in Melbourne as a fabricator in a factory.  Within a couple of months, you had begun a relationship with Kathleen Smith. You have two children to her.  The relationship broke down in 2015 and it appears that things spiralled out of control after that time.

23I was told that you used cannabis and abused alcohol from the age of 18.  You first tried methylamphetamine in Melbourne at age 19 or 20.  It appears however that your use of drugs escalated following the breakdown of your relationship and you were binging on methylamphetamine and not sleeping for days at a time after that breakdown.

24You have prior matters in July 2015 for failing to answer bail, criminal damage and driving while suspended.  You also have a prior matter from August 2015 for assault by kicking and failing to answer bail.  On that occasion you were placed on an adjourned undertaking on condition that you undertake an accredited anger management course.

25It is apparent from this offending that you have a propensity to react violently and aggressively when confronted over your unlawful activity. You also have a propensity for making violent and unnerving threats to those who confront you.

26The primary submissions of the plea made on your of behalf were as follows: 

·    First, your offending was marked by spontaneity rather than planning;

·    Second, your aggression was indicative of your disorganised and distressed state;

·    Third, that you remain a youthful offender who has had minimal contact with the criminal justice system. Your prospects for rehabilitation are thereby enhanced by your youth;

·    Fourth, your early plea of guilty should be viewed as having a utilitarian benefit and is a reflection of your resolve to accept responsibility and not commit further offences;

·    Fifth, your experience of custody has been difficult as you spent a considerable amount of time in confinement.  After two months in the general population you were returned to intensive management and you have spent your time in prison in confinement since;

·    Sixth, you have little support in prison with only rare telephone contact with your family and some renewed contact now with Ms Smith.  It appears that your relationship with her has been reconciled;

·    Seventh, prison is more burdensome for you as you face the expectation that you are more likely than not to be deported at the end of your sentence.  As you are a permanent resident, you have not heard anything from the immigration officials and this leaves you in a state of uncertainty;

·    Eighth, you have undertaken two programs totalling 44 hours of drug rehabilitation.  You remain abstinent and you are committed to remaining abstinent upon your release; and

·    Ninth, the best protection for the community is through your rehabilitation.  Your youth provides reasonable prospects for your rehabilitation.  As such, it was submitted that a longer than usual period of parole with a shorter minimum immediate term should be imposed.

27The Crown submitted that the relevant purposes for sentencing in this case are general and specific deterrence, just punishment, denunciation and protection of the community.

28The objective circumstances of your offending in this 18 day period are indeed serious. Whilst the thefts from shops are of relatively low value, you responded aggressively on three occasions and made threats involving firearms on two occasions.  Your actions in assaulting and threatening the people who confronted you when they were simply going about their job in serving members of the public speaks highly of the antisocial nature of your behaviour.

29The trespass, injury and armed robbery charges are very serious indeed.  Everyone is entitled to feel safe in their own home.  The community will not tolerate violence and threats made against people in their own homes and as I have already described, there is such a level of gratuitous violence in your assaults and threats as to make it inevitable that your conduct will be met by severe punishment.

30Principles of general deterrence, denunciation, just punishment and protection of the community figure highly in the sentence that I must impose for this incident. An aspect of specific deterrence must also figure.

31In mitigation, I consider that the plea of guilty does have utilitarian benefit in this case.  Given the range of your offending, the pleas of guilty have led to a saving of expense to the community.  I consider that your insight and remorse, however, is limited. The answers in your record of interview range between partial admissions, self-justification and the bizarre.  It is extraordinary that you should tell the police that you could have committed even more serious offences against the victim and his wife in their home during the course of your armed robbery and assault, but you were able to show a modicum of restraint. In my view, this shows no remorse and no insight.

32I can only make limited positive use of your conduct since your offending.  
The fact that you have spent the overwhelming majority of your time on remand under intensive management is very troubling.  Although you have successfully completed two drug and alcohol rehabilitation courses whilst in custody, the larger concern remains your persistent defiance of authority. 

33Your youth gives some hope for your rehabilitation in the future, albeit guarded.  Given the violent and aggressive outbursts connected with your offending, and given the year and a half that has passed since your arrest has been spent largely in intensive management on remand, I warn you that the clock is ticking down on the mitigating effect of youth in your favour.

34I have no material before me as to the likelihood of your prospect of deportation.  I simply cannot assess whether it is a likely prospect or not.  Nevertheless, you have spent your entire adult life in this country and chose to make a life for yourself here with your partner and your two children.  I accept that the prospect of losing that life and the contact with your children must be very difficult indeed.  I take this into account in mitigating your sentence.  I also accept that the lack of family support whilst you serve your sentence must also make your time more burdensome.

35And so the sentences that I impose are as follows:

36On Charge 1, the charge of theft of the Porsche, you are sentenced to six months imprisonment.  Two months of that sentence will be served cumulative on Charge 5.

37Charge 2, theft of safety glasses and the cordless drill, two months imprisonment, one month cumulative on Charge 5.

38Charge 3, theft of nail guns, one month imprisonment.

39Charge 4, theft of nails guns, one month imprisonment.

40Charge 5, armed robbery and this is the base sentence, a sentence of four years and three months.

41Charge 6, intentionally causing serious injury, two years and three months, nine months of which is to be served cumulative on Charge 5.

42Charge 7, theft of motorbike, four months; one month cumulative on Charge 5.

43Charge 8, theft of items from Woolworths, two months, one month cumulative on Charge 5.

44Charge 9, theft of items from the shed, one month imprisonment.

45Charge 10, negligently dealing with proceeds of crime, one month imprisonment.

46Summary Charge 6, unlicensed driving, one month imprisonment.

47Summary Charge 9, resisting a police officer, two months imprisonment, one month cumulative on Charge 5.

48Summary Charge 14, wilful damage of property, one month imprisonment.

49Summary Charge 16, unlawful assault, two months imprisonment, one month of which is to be served cumulative on Charge 5.

50Summary Charge 18, unlawful assault, two months imprisonment, one month of which is to be served cumulative on Charge 5.

51Summary Charge 20, unlawful entry, three months imprisonment, two months of which is to be served cumulative on Charge 5.

52The total effective sentence is five years and ten months.  I order that this sentence be served concurrently with the sentence you are currently undergoing.  I set a new minimum term for all of the sentences you are now serving.  I order that you must serve a minimum of four years before you are eligible for parole.

53I reckon the period of 161[2] days pre-sentence detention as already served in relation to this indictment and the notice of summary charges.  Any previous declarations as to pre-sentence detention and the time you have served in custody since 20 September 2016 are to have effect.

[2] The number of days of pre-sentence detention was amended, on application by the Prosecution, at the County Court by Judge Lyon on the 28^th June 2017.

54The 6AAA declaration is that but for the plea of guilty I would have imposed a total effective sentence overall for the indictable charges of seven years with five years and three months to serve.

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