Director of Public Prosecutions v Kelty, John
[2011] VCC 1987
•26 September 2011
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable of Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01529
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN KELTY |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 September 2011 | |
DATE OF SENTENCE: | 26 September 2011 | |
CASE MAY BE CITED AS: | DPP v Kelty, John | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 1987 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Robbery – Summary charges – commit offence whilst on bail and unlicensed driving – Relevant prior offending – Parity in sentencing
Sentence:Convicted and sentenced to Total Effective Sentence of 17 months’ imprisonment with a non-parole period of 10 months’ imprisonment – 48 days imprisonment pre-sentenced detention declared – s.6 AAA Sentencing Act declaration
APPEARANCES: | Counsel | Solicitors |
| Director of Public Prosecutions | Ms A. Ellis | Solicitor for Office Public Prosecutions |
| For the Accused | Mr C G Triscott | Michael Gleeson & Associates |
HER HONOUR:
1 John Kelty, you have pleaded guilty to one charge of robbery, which carries a maximum penalty of fifteen years' imprisonment. You have also pleaded guilty to two summary charges - one of failing to answer bail which carries a maximum penalty of twelve months imprisonment and unlicensed driving which has a maximum term of 3 months imprisonment.
2 The Crown opened the plea as follows:
3 You were born on 6 June 1976 and were aged thirty-three years at the time of the offending.
4 Your victim, Tran Huynh, was aged 15 years at the time of the offences.
5 At approximately 6.00 pm on Monday, 26 April 2010, she was walking from tutor lessons, along Short Street, Maidstone, carrying her backpack on her back. It contained her MP3 player, a textbook, purse, umbrella and other personal items.
6 You were the driver of a burgundy coloured Fairlane. You pulled up behind the victim, and parked on the side of the road. Your co-offender, Julie May, a passenger, alighted from the vehicle and approached the victim. Holding a screwdriver which was approximately 30 centimetres long, your co-offender said to the victim, “Don’t be afraid, I just want your money”.
7 Your victim immediately felt scared and told your co-offender that she had some money in her backpack, which she would give to her. At this point, you approached the victim and grabbed her backpack from behind, pulling her backwards, and causing her to fall to the ground. Your victim screamed.
8 As she fell to the ground, your co-offender ripped her backpack from the victim, and then you and your co-offender ran back to the nearby car, reversed down Ballarat Road and drove off. This is the basis for (Charge 1: Robbery).
9 Passers-by and a resident then came to the victim’s assistance. They contacted police and provided a description of your vehicle.
10 Shortly before being notified of the robbery, police observed your car being driven in Elphinstone Street, West Footscray.
11 On Friday 30 April 2010, police executed a search warrant at the home of you and that of your co-offender at 13 Corella Place, Werribee. The victim’s MP3 player was recovered. You and your co-offender were arrested and conveyed to Werribee Police Station where you each took part in a taped record of interview.
12 During the interview, you denied knowledge that it had been an armed robbery, stating you had just thought a bag was taken (Q. 21). You said that your co-offender had acted alone after you had stopped the car near a phone box to make a call (Q. 39, 59- 71). You told police your co-offender got out of the car, and you saw your co-offender approach the victim; that when you heard the victim scream, you alighted the vehicle and pulled your co-offender away from the victim (Q.85, 173, 191). This caused the victim’s backpack to come loose from her shoulder (Q. 90).
13 You said that your co-offender had no objects in her hand (Q. 103). You were unsure whether it was you or your co-offender who had picked up the backpack (Q. 192), and that the two of you had returned to the car and left the scene (Q. 139). You further stated that you had stopped in Brooklyn on the way home to dispose of the backpack, which was thrown into an industrial rubbish bin. You told police,
14 "I felt low enough as it was”
15 And you also said you:
16 "didn’t wanna hurt somebody”
17 (Q. 159 & 169).
18 You later provided details of the location of the bin, being at a BP Service Station in Geelong Road, Brooklyn. Surveillance footage later obtained from the BP service station, depicts you and your co-offender sorting through the backpack, before you dumped it in the bin.
19 You were charged on 30 April 2010, and released on bail. You failed to appear at a committal mention at Melbourne Magistrates’ Court on 4 August 2011, in contravention of your bail. You had not provided a valid reason for your failure to appear nor had you been in contact with your legal representatives. This gives rise to the (Summary Charge 1: Fail to Answer Bail)
20 As a result of the offending, the victim suffered a scratched right knee. The value of the property stolen from her was $300. Other than the MP3 player, none of her property was recovered.
21 At the time of the offending, you, whilst driving the vehicle in Short Street, Maidstone, did not hold a valid Victorian driver’s licence. Your licence had expired on 9 October 1996. And this gives rise to (Summary Charge 2: Unlicensed Driving)
Plea of Guilty
22 You entered a plea of guilty to these offences at Melbourne Magistrates’ Court on 16 August 2011 and were committed by way of straight hand-up brief.
Pre- Sentence Detention
23 As a result of failing to answer bail on 4 August 2011, a warrant was issued for your arrest. You were arrested on 9 August 2011 and remanded in custody. You have served forty-eight days now by way of pre-sentence detention.
Victim Impact
24 I must also take into account the impact which your offending has had upon the victim. In her Victim Impact Statement, your young victim indicates that she had only been in Australia for one year when you and Ms May offended against her. She suffered scrape marks to the knee as a result of being pulled to the ground and she said that she has found the experience of being subjected to your offending and the offending of Ms May, she says that that experience has been very hard to deal with. She said that she was very scared and thought that she may have been hurt or killed by you and Ms May. She said that she now finds it very hard to go out and cannot go out by herself “properly” because she is too scared. She can no longer see her friends when she likes.
25 Before you and Ms May offended against her, the victim was confident to go out on her own and to see people, but now she is constantly looking over her back. She had been finding adjustment to living in Australia difficult enough, but your offending has made this all the more difficult for her. She said that her lack of English skills made it hard for her to effectively communicate whilst you and Ms May were offending against her.
26 Mr Kelty you should appreciate that these are the very real consequences of your actions.
Co-Offender
27 On 15 April 2011, in this court, your co-offender, Julie May pleaded guilty to one charge of armed robbery,. She was convicted and sentenced to eighteen months’ imprisonment, with a non parole period of ten months. Armed Robbery has a maximum penalty of 25 years imprisonment.
28 On your plea, it was put that she was the instigator of the events of 26th April 2010, and that you acted in a spontaneous fashion, having observed what she was doing. It was put to me that you came late onto the scene and felt that you should end it quickly as you were concerned about what Ms May was doing; although it is not alleged, and I do not sentence you on the basis that you knew Ms May was threatening the victim with a screwdriver when you saw fit to take the complainant’s back pack, and in doing so, causing her to fall to the ground. Obviously, if it were alleged and proven that you knew that your co-offender was wielding a screwdriver, you would be facing the more serious offence of armed robbery.
29 Ms May had three previous court appearances, as follows:
(1) On 29 October 1985, she was convicted and fined in relation to charges of assault by kicking and two charges of assault in company;
(2) On 12 February 2002, she received a wholly suspended sentence in respect of three charges of theft of a motor vehicle, one charge of driving without a licence, one charge of theft from a motor vehicle, a charge of going equipped and one of possessing a controlled weapon. She was sentenced to an aggregate term of 10 months imprisonment which was wholly suspended for 12 months. But on appeal to this Court, the wholly suspended term was reduced, effectively to 8 months imprisonment.
(3) In 2008, she received a non-conviction adjournment for theft, which was in relation to shoplifting.
30 I sentenced Ms May on the basis that she was the one who made the demand upon your victim whilst threatening her with a screwdriver. As I must, I sentence you on the basis that it is not alleged that you saw or knew that
Ms May was wielding a screwdriver at the relevant time.
31 I sentence you on the basis that your offending was not premeditated, as against a certain level of premeditation which I found in respect of Ms May, I also sentence you on the basis that you did not make the initial demand, and the offence that you committed is less serious than that of Ms May. On the other hand, in relation to the offence of robbery, yours is a serious example, as you chose to perpetrate violence, rather than merely to threaten it, upon a victim who was only fifteen years old. Also, your criminal history is far more extensive than your co-offenders. Of course, this does not make your offending on this occasion more serious, but it is a relevant matter for me to consider in terms of specific deterrence and your prospects of rehabilitation, as well as protection of the community.
32 You have numerous prior convictions, primarily dishonesty offences, although there are also a number offences concerning drugs and driving. Despite a number of opportunities, you have failed to derive any benefit from community-based orders and you have continued to re-offend on a constant basis since 1996. You have also received the benefit of wholly suspended sentences in the past and you have been sentenced to gaol on a number of occasions – none of these has served to deter you from further offending.
33 I note that in the past, you have not committed any offence of violence, which I also take into account. I take into account that in respect of the offence of failing to answer bail, you have two prior convictions for this, and you have six prior convictions for unlicensed driving,
34 I was told by your counsel that on the occasion of this offending, for which I now sentence you, you had gone to Footscray in order to sell a mobile phone so as to fund a purchase of heroin. You had been unsuccessful in that endeavour and it was on the way back that your offending against the young victim took place. Notwithstanding your avowed reluctance to become involved in what your co-offender was doing, you did become involved and perpetrated violence upon a defenceless teenager. You instructed your counsel that you did not find cash in the backpack and had not yet sold items in order to fund more heroin after you committed the robbery.
35 Unlike you, Ms May entered a plea of guilty at the earliest possible opportunity. Ms May also co-operated with the police to a significant extent, making full admissions and assisting them with their investigations. She received the benefit of this which is reflected in the sentence that she received. In your case, you did not offer to plead guilty to robbery until just prior to a contested committal hearing, although I accept that at that time you were facing a charge of armed robbery, which was withdrawn by the Crown upon your plea offer. A summary jurisdiction hearing was then listed for
4 August 2011, however, you failed to appear.
36 In his report, tendered on your behalf, Mr Watson-Munro spoke of your feelings of guilt, self-punishment, self-dislike and criticism of yourself and your faults (page 4 – report dated 31 August 2011). He spoke of your remorse for your behaviour at Paragraph 3 of his opinion (p.5 of report). I was told by your counsel that your plea of guilty to robbery and your record of interview both indicated your remorse. However, when one looks at what you said to police in your record of interview, whilst you did say that you did not want to hurt anybody, this appears to be as far as it went. You give an account to police which was largely exculpatory, painting yourself as the victim’s “knight in shining armour”, trying to prevent your co-offender from doing anything to her.
37 I am not convinced that your record of interview bespeaks remorse, in circumstances where you chose to give a self-serving account to police in which you painted yourself as the champion of the victim in some respects. Whilst you may well have expressed some regret in saying that you did not want to hurt somebody, the fact is that you took the decision to hurt the victim in a bid to take her backpack. You were later seen in surveillance footage at the BP Service Station sorting through the backpack before you dumped it in a bin.
38 Moreover, you failed to appear at the Melbourne Magistrates’ Court on
4 August 2011, and could provide no valid reason for doing so, having made no attempt to make contact with your legal representatives. Although this is the subject of a summary charge, it also indicates to me that you were not so remorseful at that stage of proceedings that you did not - that you - that you did what you could to bring matters to a speedy resolution. One would have thought that if you were truly remorseful for what you had done to this young victim, that you would have appeared when required to do so in order to finalise matters in a timely fashion.
39 Mr Tim Watson-Munro does not report in specific terms that you expressed remorse or concern for your victim, although his report is filled the difficulties that you have experienced in life. I note that he saw you on 30 August 2011 and was equipped with a number of documents which did not appear to include your record of interview.
40 In the circumstances, I am not prepared to find that you do have much in the way of genuine remorse for your victim, although you do appear to express some regret for what you have done in terms of your assessment of your own character and lack of fulfilment in life. I take into account your plea of guilty and the stage at which this was made, bearing in mind that you were facing the more serious offence of armed robbery, which was ultimately withdrawn by the Crown.
41 In the circumstances, I am prepared to allow for a substantial discount in the sentence that you would otherwise receive, as you have saved the witnesses, particularly the victim, the trauma and trouble of giving evidence, and you have saved the community the time and expense of running contested proceedings.
42 I take into account the report of Mr Watson-Munro which indicates that, from an early age, you subjected yourself to substance abuse, commencing at the age of fourteen, when you experimented with cannabis. Your drug use dramatically escalated following the tragic death of your brother, when you were fifteen years old and he was nineteen. Since then, you have struggled with poly substance abuse and your primary drug of addiction has been heroin and, in more recent times, ice. You were scourged by the grips of your drug addiction on the occasion that you offended against the victim in this case.
43 Mr Watson-Munro is of the view that you have longstanding psychological problems which are reflective of an early anxiety disorder, referable to a diagnosis of ADHD, coupled to features of post traumatic stress and substance abuse disorder subsequent to the tragic and early death of your brother. The trauma that you experienced in relation to your brother’s death was further exacerbated by the fact that the drunken driver who struck him was acquitted at trial some two years after his death.
44 Unfortunately, you had significant learning difficulties at school and suffered from low self-esteem. You experienced problems at various schools because of these issues.
45 You have two surviving siblings with whom you are not close. Sadly, the brother with whom you were close was to your nineteen year old brother, with whom you enjoyed a very strong bond and looked to as something of a role model.
46 You have been able to maintain employment from your late teens to early twenties, working in a wrecker’s yard and then at a hot bread shop. However, when you were twenty-one or twenty-two, you sampled heroin and found this a way of numbing the pain that you were experiencing from your sad past. You were unemployed for significant periods upon becoming addicted to heroin. Your last job was about a decade ago, when you were employed with Dunlop for six months. Substance abuse has been an ongoing scourge to your life, which has, no doubt, had a great deal to do with your criminal offending over the years. Mr Kelty you should be aware, and if you were not before now, that if you continue to take drugs and offend, your drug taking on any future occasion may well be treated by the court as an aggravating feature, exposing you to a more severe sentence than you would otherwise be facing.
47 When you were twenty-five years old, you formed a relationship with Ms Julie May and you have been in a relationship on and off for ten years. You have one child of that relationship – an eight year old son, who is now living with your brother. Your son suffers from Asperger’s syndrome. There are ongoing proceedings in the Children’s Court concerning the care of your son and, through your counsel, you have expressed a desire to change your ways and become a responsible parent towards him. Whilst in custody, you have apparently come to the realisation that your relationship with Ms May, another drug-addicted person, is not of assistance to your rehabilitation and that you intend ending that relationship.
48 Over the years, you have attempted to use heroin replacement drugs, such as Methadone and Suboxone, but these have not been successful. You have also received the benefit of a number of community-based orders as I have already indicated. However, I was told that none of these addressed the psychological or psychiatric problems that you may well be suffering from.
49 Mr Watson-Munro is of the view that you may have suffered organic brain damage as a result of being struck to the head on three occasions, which you reported to him. I enquired as to whether a neuropsychological report may be needed in respect of your present condition. However, you indicated through your counsel that you did not wish to pursue such an avenue, as you wanted some finality to the matters.
50 You also reported to Mr Watson-Munro that you suffered from epilepsy, but I have received no medical documentation in this regard and nor has
Mr Watson-Munro.
51 I take into account Mr Watson-Munro’s findings in a general sense, in circumstances where you counsel does not seek to rely on any impairment of mental function which may have contributed to your offending. Nor did he submit that your time in custody would be more difficult because of any condition you might have.
52 Mr Triscott submitted that you needed significant psychological and/or psychiatric care to address deep-seated problems, for which you commenced self medication some years ago, now. He indicated that the community-based orders, to which you had been subjected to in the past, did not provide you with any counselling or treatment, and I must say I found this somewhat surprising. But in any event, it would appear that you wish to address your underlying problems when you are released from custody. However, your counsel urged me, on your instruction, not to impose a sentence of imprisonment with a non-parole period but, rather, a partially suspended sentence. Again, I am somewhat surprised by this, given that I would have thought a period of supervision after your release from gaol would have assisted you in your rehabilitation. According to you, past periods on parole have not been of assistance.
53 As I have already said Mr Kelty, your offending was indeed serious and, in saying this, I make it clear that I mean your commission of the offence of robbery against this young girl. When I take into account your appalling criminal history, notwithstanding that you have no prior convictions for violence, and when I take into account the fact that you are afflicted by drug addiction which you have been unable to overcome in the past, and are yet to address underlying problems, I am afraid that I can only find that your prospects of rehabilitation are poor. Further, I must give significant weight to the principles of specific and general deterrence and impose a sentence which addresses the need to justly punish you and denounce your conduct.
54 In imposing sentence upon you, I am most mindful of the sentence which I imposed upon Ms May and the features which separate you in terms of the different offences that you have committed, and your respective roles; but I also take into account that you have a far lengthier criminal history and the nature of the robbery which you committed which involved actual violence, rather than a threat to inflict violence as is sometimes the case. I am also mindful of the various mitigating features which apply to each of you.
55 The Crown submitted that a range in the order of fourteen to eighteen months head sentence with ten to fourteen months non-parole period was appropriate in your case.
56 Your counsel submitted that the sentence which I impose ought be less than that imposed on your co-offender.
57 In your case, I must also impose a sentence which gives considerable weight to the need to protect the community and, of course, I take into account the impact on the victim.
58 In all the circumstances, I am of the view that notwithstanding the features which separate you from your co-offender in a sense which goes in your favour, these are somewhat balanced out by the seriousness of your offending, the fact that you have a significant criminal history and that in your case I must give more weight to specific deterrence and the need to protect the community. I am also of the view that some cumulation is warranted in respect of the summary offences you have committed, as you are a repeat offender in respect of each of these.
59 Would you please stand up, Mr Kelty.
60 Firstly I make an order for the taking of a forensic sample to be provided by a scraping from the mouth on the basis that the order is not opposed, the seriousness of the offending, your prior convictions and the granting of the order is in the public interest. I should tell you that if you fail to co-operate with an authorised member of the police force in relation to this procedure, reasonable force can be used to enable the forensic procedure to be conducted.
61 I make an order for compensation to the victim in the sum of $300, which is not opposed by you.
62 In respect of the offence of robbery, you are convicted and sentenced to 16 months imprisonment. In respect of the summary charge of unlicensed driving, you are convicted and sentenced to 2 months imprisonment. In respect of the offence of failing to appear, you are convicted and sentenced to 1 month imprisonment.
63 I order that 2 weeks of the sentence imposed in respect of unlicensed driving and 2 weeks of the sentence for fail to appear be served cumulatively with each other and with the sentence on Charge 1 - that is the sentence for robbery. This produces a total effective sentence of 17 months imprisonment, and I order that you serve 10 months imprisonment before becoming eligible for parole.
64 I am conscious of the fact that the non-parole period is the same as that which I imposed for Ms May notwithstanding that your head sentence is slightly less. I have done this because I regard 10 months as the minimal period required in your case to properly address all matters pertaining to you.
65 You have served 48 days in custody which I declare to be reckoned as served in respect of this sentence.
66 If not for your pleas of guilty I would have sentenced you to a total effective sentence of 2 years 4 months with a non-parole period of 20 months imprisonment.
67 Yes thank you, you can remove the prisoner.
68 MR TRISCOTT: If Your Honour pleases.
69 MS ELLIS: If Your Honour pleases.
70 HER HONOUR: We will now adjourn.
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