Director of Public Prosecutions v Kelly, Daniel
[2013] VCC 778
•24 April 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-00254
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL KELLY |
---
JUDGE: | His Honour Judge McInerney | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 April 2013 | |
DATE OF SENTENCE: | 24 April 2013 | |
CASE MAY BE CITED AS: | DPP v Kelly, Daniel | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 778 | |
REASONS FOR SENTENCE
---
Subject: Criminal law – plea – sentence
Catchwords: Armed robbery – Safeway outlet – masked – knives – young offender – prior criminal convictions – alcohol and polysubstance abuse
Legislation Cited: s.75A(1) of the Crimes Act 1958
Cases Cited:R v. Mills [1998] 4 VR 235 – R v. Tsiamas & Kastanis (unreported, Supreme Court of Victoria – Court of Appeal, 21 May 1997) – R v. Bainbridge & Ors (1993) 75 A Crim R 265
Sentence: 2 years and 6 months imprisonment with a non-parole period of 11 months and 12 days
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D. Guesdon | Ms H. Pearson (Office of Public Prosecutions) |
| For the Accused | Mr G. Chisholm | Slades & Parsons |
HIS HONOUR:
1 In this matter, Indictment Number C13217777, Mr Daniel Seamus Kelly pleaded guilty to one charge of armed robbery. Such is an offence against s.75A(1) of the Crimes Act 1958, for which Parliament has proscribed a maximum penalty of twenty-five years' gaol. Perhaps I need to say no more than so as to indicate the seriousness of this crime.
2 However, in the Exhibit A, which was tendered and agreed to by counsel on your behalf, is the prosecution opening for this plea. It demonstrates what can only be described as you being part of outrageous criminal activity. If one was unaware of your priors, one would wonder how you became involved in these matters.
3 While it is true that you have never been sentenced to an adult gaol term before, an analysis of your prior offences which have occurred within the children's justice system indicates, what seems quite concerning, as to how a person of your age became involved in this serious crime.
4 Since August 2009 you have been involved in a number of very serious offences. You were given a bond in the Children's Court on that date at the age of seventeen when you pleaded guilty to multiple offences, the most serious of which was aggravated burglary. Then in November 2009 you pleaded guilty to an attempted armed robbery. You were sentenced to a youth supervision order for a period of nine months. However, you managed to breach that order significantly, so that when you were dealt with in August 2010 the offences that you pleaded guilty to were ones of affray, burglary, robbery, two charges of armed robbery, two of recklessly cause injury. As a result you were given a Youth Justice Centre Order of a period of eight months.
5 You unfortunately also were involved subsequently in being imprisoned in an adult prison, while awaiting trial for other alleged crimes, which were either dismissed or not proceeded with. However, suffice it is to say that those priors of a boy of your age, you are now a man but you were then a boy, provide a background and a concerning one to you being involved in this offence. They perhaps explain why you so readily went on this exploit with your other co-offenders, albeit a major escalation.
6 As is detailed in Exhibit A this crime is an outrageous joint attack on a public facility. You entered these premises, which one needs to remember is a Safeway food outlet, with three co-perpetrators. You were all masked and armed with knives. Those knives were presented to the operators of particular cashier points and threats were made. The attack was carried out jointly. Suffice to say, the reference I have already made to the Victim Impact Statement of one of those workers carrying out his job at the cashier centre, gives an indication of what persons, carrying out their normal employment duties, go through as victims.
7 In his victim impact statement (Exhibit B), and particularly at paragraphs 4 and 5, Mr Muday talks of the emotional impact, the immediate scare that he went through and the shock that he went through. He also talks of the nerve wracking situation that he experienced, and his hope that others in the community do not have to go through the same. As I said to your counsel, it seems to me that there is nothing inappropriate or exaggerated about those words of Mr Muday.
8 I am conscious, of course, that you are still only twenty years of age and there is provision, as you are a young offender, for you to be dealt with in the youth justice system. Indeed, in the final submission to me from the prosecutor in this matter, it was indicated that had I been so inclined the Crown's view was such was an option in this case. However, despite the principles that are set out and referred to by your counsel, in particular in R v. Mills [1998] 4 VR 235, what the Court of Appeal referred to in R v. Tsiamas & Kastanis (unreported, Supreme Court of Victoria – Court of Appeal, 21 May 1997) is apposite to this case.
9 In that case the Court of Appeal referred to a Queensland Court of Appeal determination of R v. Bainbridge & Ors (1993) 75 A Crim R 265, where the Court said:
"There are of course some cases which are so serious, that notwithstanding the youth and the absence of relevant priors, the offender must go to gaol".
Obviously you do not, in your instance, have a lack of relevant priors. However, you are a young person.
10 I have over my now many years of sentencing tried to adopt such principles at all times. It is my experience that young men given a chance by this Court do take the opportunity. If it was possible, for you to be detained in a youth facility, I would make such an order. Unfortunately, I find that your criminality was of such a nature and degree that it would be totally inappropriate, upon the principles referred to in Bainbridge, for me to so sentence you.
11 As to your sentence, Mr Chisholm tendered Exhibit 1. That was the excellent report, if I might say so, provided by Ms Carla Lechner, clinical and forensic psychologist. Such report demonstrates the somewhat difficult and dislocated personal history that you have had. It also demonstrates your life from a very early age being marked by polysubstance drug and alcohol issues, it shows you to be an intelligent person and raises the spectre in your life of you being permanently affected by addiction to alcohol and drugs, and it also raises the spectre of you being permanently institutionalised.
12 It is to be hoped that steps that you now take at this stage, hopefully during the time of your parole, will assist you to turn away from such future, which has been predicted as likely for you. It would certainly disappoint this Court if a person of your capability, as I referred to earlier, simply became a permanent fixture in a prison, being one of the mugs that just does the circles, or works out in the gym, all day.
13 You are, and must still be considered to be, a young offender. I make the point that in this case your co-offenders are all to be dealt with in the Children's Court. That comes about because all of them, at the time, are still under the age of eighteen and the legislation provides for a completely different regime to apply to them.
14 You have also pleaded guilty. I accept that not only is that plea of utilitarian benefit to the community and the Courts, but it also, I find, correctly described by Mr Chisholm, demonstrates that you have shown genuine remorse.
15 You expressed that remorse for the situation you have got yourself in, and for the actual crimes that you committed, to Ms Lechner and consistent with that, instructed your solicitors that bail was not to be sought for you. Indeed, you have been, for some one hundred and forty-two days or so, on remand and awaiting this day.
16 The plea itself obviously has been entered at a very early time. It has been pointed out that you have dependents, you have a partner who has supported you in Court, you have one child and another on the way. It seems to me that such in itself should be enough to make sure that you do not proceed along the path that is predicted for you.
17 In considering your sentence the learned prosecutor put, given the serious nature of this matter and the high culpability that I have already referred to, that the range by a way of aggregate sentence should be a period of between two and three and a half years, with a minimum period before parole eligibility of between fifteen and twenty-four months.
18 Mr Chisholm was particularly at pains, in his submission on your behalf, to point to your capacity within a structure to do well. Your difficulties seem to be when you get into stressed situations on the outside; you mix with the wrong company, you either abuse drugs or alcohol and find yourself in difficult positions. No one, and you are old enough now and mature enough and a man of the world, can overcome that situation, but you. I hope that you can do it. As I said, you have got, obviously from your wife's presence here, an alternate life that you can make something of.
19 What Mr Chisholm put to the Court was that considering your pre-sentence detention, and in addition to that, the unattributed remand time that you served in 2011, that the non-parole period that you should serve should not be much more than the totality of those periods of detention. However, he did stress the need for you to get appropriate assistance on parole. Clearly you will get that. The question is, will you make the most of it? I hope you do.
20 Having considered all of these matters then, if you would stand please, I have determined as follows:
Sentence
21 Mr Kelly, you are sentenced to a period of imprisonment of two and a half years.
22 The minimum term that you must serve is a period of eleven months and twelve days.
23 I indicate that in setting that term I have taken into account the unattributed remand time of five months and twenty-three days.
24 In regard to the non-parole period of eleven months and twelve days, I declare pursuant to s.18 of the Sentencing Act 1991 that the one hundred and forty-two days of pre-sentence detention that you have served be declared service of this sentence and that a declaration to such affect be recorded in the records of this Court.
25 As such you have had your unattributed time taken into account, and in addition I have made the declaration under s.18 of the Sentencing Act 1991. Therefore, before you will be eligible for parole you will be required to serve another six months. There might be difference in days by the time they work the precise numbers out.
26 I declare pursuant to s.6AAA of the Sentencing Act 1991 that had you not pleaded guilty I would have sentenced you to a period of imprisonment of three years and four months with a minimum to serve of twenty-five months.
27 I think I have already signed, have I not, a retention order insofar as the forensic sample and a disposal order. They are the only matters that I have to attend to?
28 MS GUESDON: Yes, Your Honour.
29 HIS HONOUR: Madam Prosecutor, any other matters that I need to mention?
30 MS GUESDON: No, Your Honour.
31 HIS HONOUR: Mr Chisholm?
32 MR CHISHOLM No, Your Honour.
33 HIS HONOUR: Mr Kelly can be taken away and good luck. I hope you make the most of it, all right? I do not want to see you here again. You look after him, make sure he behaves himself.
---
0
0
0