Director of Public Prosecutions v Kelly
[2017] VCC 483
•26 April 2017
| IN THE COUNTY COURT OF VICTORIA AT COUNTY KOORI COURT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00940
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GRANT KELLY |
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JUDGE: | HIS HONOUR JUDGE TAFT | |
WHERE HELD: | County Koori Court at Melbourne | |
DATE OF HEARING: | 10 April 2017 | |
DATE OF SENTENCE: | 26 April 2017 | |
CASE MAY BE CITED AS: | DPP v Kelly | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 483 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Armed robbery
Legislation Cited:
Cases Cited:
Sentence: Imprisonment for 5 years with non-parole term of 2 years and 8 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Malobabic | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr D Cronin |
HIS HONOUR:
1 Grant Kelly, you have pleaded guilty to one charge of armed robbery and have admitted an extensive criminal record. At the time you offended, you were 24. You are now 26 and have spent little more than six months in the community over the last eight years.
2 The circumstances of your offending can be summarised. They are more fully detailed in a prosecution opening which has been tendered as Exhibit A.
3 At about 1 am on 30 March 2015, you and your co‑accused, James Hind, arrived at the Blue Bell Hotel at Wendouree, Ballarat. You were well prepared. You were armed with a handgun, wore gloves and disguised your identity by wearing a homemade balaclava. You were carrying a backpack. Hind was armed with an axe handle and was wearing gloves and a balaclava.
4 At the rear of the hotel, you ran into a customer. You told her, “We aren’t here for you. Leave.” You pointed a gun at her and told her that “You didn’t see us.”
5 You then tried to force a locked door open in order to enter the hotel. Your backpack was open at this time and a round of .22 ammunition was later located in this area.
6 You finally broke the glass and gained entry. You made your way to the service counter where Geoffrey Lund, the hotel manager, was serving the last customer. A security guard, Jude Yourey, yelled, “Look out” and you pointed your handgun at Mr Lund and said, “Gimme your money.” You told a female customer to “Get away lady, please”.
7 Mr Lund placed the cash float from his register on the counter but you jumped the counter, knocking the float to the ground and made your way to the strongroom. A small safe was open and you stole $2,450 from it.
8 Your co-accused remained at the entry point and screamed at people not to move and extracted some personal items from two hotel employees.
9 You both left the hotel through the same door through which you had entered the premises and made your way back to a house in Wendouree. At that location, you changed your clothing and you gave Hind $200 for his role in the armed robbery.
10 On 8 April 2015, you and your girlfriend were arrested in Redfern, New South Wales. The car you were in was searched and a number of items were located including a backpack, a black .22 homemade single shot handgun and six rounds of .22 ammunition.
11 You declined to participate in a record of interview. On 7 November 2015, you were extradited from New South Wales to Victoria and have been on remand since that date.
12 Your plea was entered belatedly, immediately prior to the empanelment of a jury on 23 January 2017.
13 Two victim impact statements were tendered.
14 Mr Lund states,
“Since the armed robbery at the Bluebell Hotel, I have been suffering from a sense of hypervigilance, which has caused me to be more stressed, anxious and made me to feel that my enjoyment of life and wellbeing has been threatened and compromised.”
15 Mr Lund says that he was previously a relaxed and patient person who is “easily spooked by sudden noises”. He indicates that his outlook on life is much bleaker and that he is less optimistic. He has difficulty sleeping at night and suffers from vivid and frightening flashbacks. He has had to see a psychologist for assistance.
16 Mr Yourey has also had recurring nightmares and has used alcohol to cope with stress.
17 I turn to your personal circumstances, which are detailed in a report authored by Jeffrey Cummins, clinical and forensic psychologist, dated 2 March 2017.
18 You are a Nunga man and were born in Bourke, New South Wales. Your parents are both part Aboriginal and your mother, Carla Burgoyne, came from South Australia and participated in the sentencing conversation in this Court. Your parents separated when you were three years old, after your very drunken father had fallen asleep on your younger brother, causing his death. After this event, your mother moved to Ceduna and you variously lived with your father in Queensland for a year and then with other family members before moving back with your mother. You have two full siblings and a half-brother on your mother’s side. You have not seen your biological father for eight years. He is an alcoholic and has been gaoled for drink driving. You think that he now lives in Mildura.
19 Between the ages of about four and 18, you had a stepfather who was dependent on heroin. You told Mr Cummins that you often witnessed him assaulting your two full brothers. You said,
"He didn't really assault me but he didn't like me. He didn't like me or my two brothers because we weren't his kids".
20 The degree of your dislocation and instability is reflected in the large number of primary and secondary schools you attended. You were enrolled at primary schools in Orange, Whyalla, Ceduna, Elizabeth, Ballarat, and Roma and at Kilburn Primary School in Adelaide. You then attended a program for troubled teenagers in Whyalla. You later attended a number of secondary schools including Whyalla High School, Port Lincoln High School and Ballarat East High School. You passed Year 9 and withdrew from school early in Year 10 when aged 16. Earlier, you had been expelled from Whyalla Primary School and Ballarat East High School for fighting.
21 After leaving school, you completed six months of a 12 month job with Ballarat City Council. You were sacked because you were disruptive. Since then, you have been unemployed and have had a serious alcohol and drug problem.
22 You started drinking alcohol at the age of 15 and frankly acknowledge that you cannot handle alcohol. You were typically a daily smoker of cannabis between the ages of 13 and 20. More significantly, you experimented with methamphetamine between the ages of 17 and 21 and thereafter, when you were not in prison, you smoked up to half a gram of methamphetamine daily. When you committed the armed robbery, you were affected by ice and alcohol.
23 You commenced a relationship with Jessica Shelton some six years ago. She is now aged 25 and lives with her mother in Ballarat. She visits you weekly, provided a letter of support and attended this proceeding. Ms Shelton says that over the past two years, she has seen you change for the better and that you tell her that when you are released, you want to find full time employment, buy your own home, start a family and get married. Ms Shelton expresses a concern that you are at risk of becoming institutionalised and that you do your time in prison quite easily. Ms Shelton’s mother also provided a letter of support and she visits you regularly in prison. A further letter was provided from Ms Shelton’s father.
24 After your arrest in New South Wales on 8 April 2015, you were sentenced to a term of imprisonment of seven months before being extradited to Victoria on
7 November 2015. You have been held on remand since that date. Whilst on remand, you have made real efforts to try to improve yourself and have undertaken a large number of certificate courses, including Certificates I and II in Aboriginal Cultural Arts, Certificates in Kitchen Operations and in Construction.
25 A letter was tendered written by Dr Justin Trounson and Ms Emily
Munro-Harrison, Board members of the Indigenous Homework Club. The letter complimented you for your active participation and contributions in and to the Homework Club. The Homework Club is an initiative from the Castan Centre for Human Rights Law, in partnership with Swinburne University and the University of Melbourne that aims to provide a pro-social learning space for indigenous men at Port Philip Prison. The program seeks to assist incarcerated indigenous men in building a sense of hope and self-confidence in relation to their ultimate reintegration into the community. The authors remark that you have demonstrated a willingness to consider positive change in your own life.
26 You are interested in art and enjoy painting. You expect to have some of your artwork shown through the Torch program which supports indigenous artists who are in prison in Victoria.
27 Your criminal record is very extensive and extends over some 18 pages. It commences with appearances at the Port Lincoln Children’s Court in South Australia when you were 16 years old and includes convictions for armed robbery, multiple burglaries and thefts at the Ballarat Children’s Court on 28 April 2008 when you were only 17 years old. You were later ordered to be detained in a Youth Justice Centre and subsequent efforts to divert you from the criminal justice system through a community correction order failed. You have been sentenced to terms of imprisonment in both Victoria and South Australia. On 3 February 2011, in the District Court of South Australia, you were sentenced to four years’ imprisonment with a non-parole period of one year and eight months for multiple offences including serious criminal trespass and dishonesty offences.
28 Quite frankly, Mr Kelly, I had considerable reservations as to whether there was much to be gained through your participating in the sentencing conversation in the Koori Court. You have a lengthy and serious criminal record. The offending before this Court is most serious. It was carefully planned. You used a firearm. You were disguised and the offending occurred in the early hours of the morning at a public venue. CCTV footage highlights the extremely aggressive and frightening nature of your conduct. On any objective analysis, your future prospects can only be described as guarded.
29 However, despite my initial reservations, I consider that your participation in the sentencing conversation was most valuable. To your credit, you took responsibility for your actions and did not hide behind your lawyer. You wrote a letter to the Court and read it aloud. You apologised to the victims of your crime and asked for forgiveness. You said that it was time for you to make a change and that you have had a lot of time to think about what you have done. You stated:
“I am deeply sorry for the hurt I have inflicted on my victims and I now realise that they're not the only victims. The other victims include my girlfriend, my dad, my mum, my grandma, my brothers and sisters, and these people are the most important people in my life.”
30 You said that once you are released, you have a job available at a building company, that you wished to play football and that over the longer term, you want to return to Ceduna and obtain a job in the mining/construction industry.
31 Mr Kelly, you would well understand that words are cheap. It is actions that matter and if you continue to commit serious criminal acts, you will spend the best part of your adult life in prison. Your girlfriend will not wait for you forever and you will have let your mother, siblings and extended family down. You told this Court that when the victim impact statements were read, you pictured your family in that situation. When confronted by the Aboriginal Elders, you were quite emotional and told them that this time it was different and that you wanted to be a good member of your community. It is for you to demonstrate that those words were not hollow.
32 Your co-accused, Mr Hind, was sentenced to five years’ imprisonment. He is three years older than you and also has a considerable criminal record. In contrast to you, he entered his plea at an early stage.
33 Your counsel submitted that your future prospects were somewhat better than your criminal record might suggest. I accept that your engagement with your community and strong family support may offer future hope. I also note that you have now been in prison for over two years, both in New South Wales and Victoria. In sentencing you, the principle of totality must have application. Whilst held at the Metropolitan Remand Centre, you were subject to 23 hour lock-downs for several months after the 30 June 2015 prison riot.
34 Ultimately, I consider that the same sentence should be imposed on you as was imposed upon Mr Hind. In setting a non-parole term, I regard extended supervision within the community as necessary and appropriate in your circumstances.
35 On the charge of armed robbery, you are sentenced to a term of imprisonment of five years. You must serve two years and eight months of that term before being eligible to be considered for parole.
36 Pursuant to s18(4) of the Sentencing Act 1991, I declare 536 days of the sentence as having been served by way of pre‑sentence detention and direct that this be entered in the records of the Court.
37 I make a disposal order and a forfeiture order in the terms sought.
38 Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty, you would have been sentenced to a term of imprisonment of six years and six months with a non-parole term of four years and six months.
39 You may be seated, Mr Kelly. Does anything arise from those sentencing remarks?
40 COUNSEL: No, Your Honour.
41 HIS HONOUR: Can I indicate to any journalist present that if they would benefit from a copy of my draft sentencing remarks, my associate will provide them immediately I rise. Thank you. We will adjourn temporarily. We have another matter listed at 3.30.
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