Kelly v R

[2007] NSWCCA 357

New South Wales
Court of Criminal Appeal

CITATION:	KELLY v THE QUEEN [2007] NSWCCA 357
HEARING DATE(S):	11 December 2007
JUDGMENT DATE:	18 December 2007
JUDGMENT OF:	Basten JA at 1; Barr J at 37; Adams J at 38
DECISION:	(1) Leave to appeal granted. (2) Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – appeal from sentence – whether sentence manifestly excessive – principle of parsimony – legitimate range of sentences – exercise of discretion of sentencing judge – Criminal Appeal Act 1912 (NSW), s 6(3)

SENTENCING – whether sentence manifestly excessive – principle of parsimony – legitimate range of sentences – exercise of discretion of sentencing judge – Criminal Appeal Act 1912 (NSW), s 6(3)

WORDS & PHRASES – sentence “warranted in law”

LEGISLATION CITED:

Crimes Act 1900 (NSW), ss 4, 112, 195
Criminal Appeal Act 1912 (NSW), s 6
Criminal Appeal Rules, r 3B

CASES CITED:

DB v Regina [2007] NSWCCA 27
House v The King (1936) 55 CLR 499
Webb v O’Sullivan [1952] SASR 65

PARTIES:

Robert KELLY – Appellant
The Queen – Respondent

FILE NUMBER(S):

CCA 2007/5296

COUNSEL:

A Francis – Appellant
M Barr - Respondent

SOLICITORS:

S E O’Connor (Legal Aid Commission) – Appellant
S Kavanagh (Solicitor for Public Prosecutions) - Respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 06/31/0413
LOWER COURT JUDICIAL OFFICER:	Garling DCJ
LOWER COURT DATE OF DECISION:	7 December 2006

CCA 2006/5296
DC 06/31/0413

BASTEN JA
BARR J
ADAMS J

18 December 2007

Robert KELLY v THE QUEEN

Judgment

1 BASTEN JA: On 7 December 2006 the applicant, Robert Kelly, was sentenced on two charges arising out of conduct committed at his former matrimonial home, in Lake Cathie. Pursuant to consent orders made in the Family Court on 16 February 2006 the property had been transferred to his wife as part of a settlement upon divorce under the Family Law Act 1975 (Cth).

2 The offences arose out of an incident on the evening of 19 July 2006 at approximately 8.45pm. The more serious offence involved Mr Kelly, whilst armed with a rifle, breaking and entering the dwelling house at Ernest Street, Lake Cathie and committing the serious indictable offence of intimidation, contrary to s 112(3) of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of 25 years imprisonment and was subject to a standard non-parole period of 7 years. The applicant was sentenced to imprisonment for 4 years, comprised of a non-parole period of 2 years and an additional term of 2 years. He also pleaded to a lesser charge of malicious damage to property, an offence carrying a maximum sentence of 5 years imprisonment under s 195(a) of the Crimes Act. On the lesser offence he received a sentence of 3 months imprisonment, to run concurrently with the longer sentence, each to commence on 20 July 2006.

3 The applicant’s case was that his sentence on the more serious matter was excessive and that a non-parole period of 1 year was the maximum sentence warranted in law. Such a sentence would have expired on 19 July 2007. The present application was filed on 28 August 2007. Despite the requirement of the rules that an application for leave to appeal should be filed within 3 months after the sentence (see Criminal Appeal Rules, r 3B) there was no explanation as to why it took more than 8 months in the present case to file an application for leave to appeal identifying a single ground of appeal, namely that the sentence was “manifestly excessive”. Apart from noting that the significant lapse of time did not arise within the Court, that aspect of the matter need not be addressed further.

The Facts

4 Before turning to the incident the subject of the charges, it is convenient to note some of the preceding events. The applicant and his wife separated in 2004, for reasons which were not explained at the hearing on sentence, but appear to have involved his problems with abuse of alcohol. There was, however, no evidence of domestic violence.

5 A report from his general practitioner, Dr Evans, indicated that on about 28 May 2004 he had been diagnosed with abnormal liver function, caused by alcohol abuse. Dr Evans reported:

“His wife left him in December 2004, and following this he began drinking more heavily and was not coping. He became depressed and suicidal over the period of 19th March 2005 – 22nd May 2006 and continued to drink.”

6 According to a report from the North Coast Area Health Service he attended as an outpatient at the detoxification unit of the Port Macquarie Community Health Centre from 12 August 2005 to 12 April 2006. It appears that he then attended a final “detox” session at Wauchope District Hospital and moved to live with his mother on the south coast whilst awaiting admission to a drug and alcohol rehabilitation centre. The Port Macquarie Community Health Centre report of 30 November 2006 indicated that their last contact with him was in April 2006.

7 It appears that he then spent six weeks on the south coast, which Dr Evans thought was prior to his admission to Wauchope Hospital on 22 May 2006, but may have been thereafter. Doctor Evans said that she last saw him on 5 July 2006 at which stage “he claimed he had not been drinking for seven weeks and claimed he had a ‘setback’ the previous evening after seeing his wife over money issues”. The consultation on 5 July was 14 days before the incident which gave rise to the charges.

8 According to the facts presented by the prosecution on sentence, the applicant was on the south coast between April and July 2006. When he returned to Lake Cathie he was informed of a new relationship involving his wife and told her: “That is fair enough. That is none of my business.” The facts continued:

“However, for the next several days the offender kept returning to Mrs Kelly’s home wanting to talk about their relationship, with her telling him that there was nothing to talk about, as it was over. On one occasion the offender had a heated argument with Mrs Kelly and his son and was told to leave the premises.”

9 The facts also stated that the applicant met his former wife on 14 July 2006, at his request, at which time she sought to reinforce her position that their relationship was over. She changed her telephone numbers later that day, from which it may be inferred that his contacts were viewed by her as a significant nuisance. The applicant apparently visited the former matrimonial home on several occasions over the next few days. Nevertheless, despite the reference to a “heated argument” and the changing of the telephone numbers, there was nothing to suggest that Mrs Kelly feared violence from the applicant at that stage.

10 When the applicant arrived at the Ernest Street premises on the evening of 19 July, Mrs Kelly was at home with their 20 year old son, David, a next door neighbour, Mrs Kerry Smith, and a Mr Michael O’Donnell, whose vehicle was parked in the driveway.

11 At some stage on that evening (the time not being revealed by the evidence) the applicant went to a friend’s home and “asked to borrow a rifle to go shooting”. The statement of facts continued:

“He was informed by his friend, who held a firearms licence, that he only had available a .22 calibre single shot rifle, which he showed the offender how to operate, including safety mechanisms. He offered the offender a full box of bullets, but he declined, instead taking a box containing only 8 rounds.”

12 There was no evidence from the friend as to the applicant’s apparent state at the time he borrowed the rifle. The applicant did not give evidence. As will be seen, by the time he reached Ernest Street (an unknown distance from the friend’s home) he was in a state of blind fury. There is no evidence as to whether or not he had been drinking on that day, but no witness to the incident suggested that he was inebriated. Certainly there is no statement in the facts to that effect.

13 The events of the evening of 19 July after the applicant arrived at Ernest Street were set out in the following paragraphs of the Facts on Sentence:

“4. … He proceeded to smash all the windows of Mr O’Donnell’s motor vehicle, which was parked in the driveway of Mrs Kelly’s home, and then went to the front door. Mrs Kelly answered his knock and opened the glass front door and spoke to him through the unlocked screen door. The offender asked if David was there, as he wished to speak to him. Mrs Kelly told the offender she would go and ask David if he wished to talk to him, and saw that he had a rifle, which he pointed at her. The offender opened the screen door and Mrs Kelly screamed, jumped back, slammed the front door and locked it. Mrs Kelly rang 000 and screamed out to the other occupants of the house, ‘He’s got a gun’. The offender then began kicking the door, but was not enable [sic] to gain entry.
5. The next door neighbour, Allan Smith, had approached the offender and said, ‘What are you doing?’ The offender said, ‘I’ve got no problem with you’. Mr Smith said, ‘Don’t be stupid’. The offender said, ‘Go away’, and continued to bash the door with the butt of the rifle. Mr Smith said, ‘Let me get my wife out’. The offender said, ‘Yeah I know Kerry’s in there. I don’t want to hurt her’. Mr Smith said, ‘Now piss off and get out of here’. The offender then smashed the glass sliding window of the living/dining room with the butt of the rifle, and pushed the barrel through waving it into the room. He pointed it at David Kelly who, terrified he may be shot, called out to the offender, ‘Dad, it’s me, don’t shoot’. The offender moved the barrel away from him but continued to search the immediate area of the room with the rifle. Mrs Kelly screamed from her position for those inside the house to get out. Mrs Smith was screaming for Mr Smith to get her. David Kelly, Mr O’Donnell and Mrs Smith left the house by the rear glass sliding door in to the backyard. Mr Smith ran to the side of the house where Mr O’Donnell assisted him to lift Mrs Smith over the dividing fence. Mr Kelly and Mr O’Donnell also jumped the fence and went inside the Smith’s home. Mr Smith had to pacify Mrs Smith, as she was extremely shaken.
6. The offender then returned to the front door and smashed the glass panel at the side of it with the rifle butt, reached in and unlocked it. He then entered the house, went to the kitchen where Mrs Kelly was on the phone, and pointed the rifle at her face. Mrs Kelly said, ‘Bob, please don’t’, and could see the offender was in an enraged state. She pushed the barrel away from her face on two occasions and the offender ripped the phone from the wall. He then walked towards the rear sliding door and Mrs Kelly ran into the next door neighbour’s house and hid. The offender then went to those premises where he was met by Mr Smith at the front door, who said to him, ‘Don’t touch anything on my house’. The offender said, ‘I’ve got no problem with you’. Mr Smith said, ‘Just piss off and go’. The offender went back into Mrs Kelly’s home for a short time and then drove away in his motor vehicle. About 5 minutes later he drove past the house and again drove away.”

14 The Statement of Facts further noted that the applicant had returned the rifle to his friend, apparently that evening. Again nothing was said about his state, other than that there was blood on the stock and he had a rag wrapped around his right hand. The rifle had apparently been damaged in the assault on the car or the front door, with the result that the rear of the bolt had been bent and the firing mechanism jammed.

15 Curiously, the facts stated that the friend had “noted that the bolt was closed and pulled back to the rear”, but did not indicate whether there was a round in the breech. Nor was there any evidence as to whether the other rounds were returned. It is difficult to believe that the police would not have sought to determine if the gun were loaded when it was returned. It is difficult to understand why the Court was invited by the Director of Public Prosecutions to sentence the applicant without information in that regard.

16 On 22 September 2006, the applicant saw a Mr John Nolan, psychologist, in Port Macquarie. He apparently told Mr Nolan that he “had no memory of the event and that he is still confused over what he was said to have done”. Whether he in fact had no memory, or did not wish to discuss the events with the psychologist, is not known. A number of these matters could have been clarified, no doubt, by the applicant, had he given evidence: he did not do so.

17 Statements were obtained from eight residents of Lake Cathie who knew Mr Kelly, and from his daughter and his sister. Apart from the members of his family, only one of the friends referred to his drinking. None suggested that he had no memory of the events and several suggested that he had given them some explanation and indicated remorse. He also indicated remorse to the psychologist.

18 There were references in a letter written by his sister (though not in that of his daughter) to a history of accidents some of which involved head injuries. Mr Nolan (psychologist) also referred to an account of a head injury in 1999 and to the possibility of “cognitive deficits”, for a person who had been “drinking alcohol at levels similar to Mr Kelly”. However the latter appears to have been speculative: Mr Nolan spoke with Mr Kelly for one hour in the cells at Port Macquarie Court House on 22 September 2006 and noted in his report that he had not had the opportunity to interview him in depth or conduct any psychometric or other tests. Doctor Evans noted that she had “no documentation with respect to a head injury or headaches”. Accordingly, it was appropriate for the trial judge to sentence him on the basis of normal cognitive capacity.

The Sentencing

19 In imposing a sentence of 4 years imprisonment with a 2 year non-parole period for the charge of breaking and entering a dwelling house and of intimidation, Garling DCJ noted that the offence carried a maximum sentence of 25 years imprisonment, with a standard non-parole period of 7 years. The standard non-parole period did not apply on a plea of guilty, which had been entered at the earliest opportunity. However, his Honour also held that the case did not fall into “the mid-range category of seriousness of these types of offences”. That was because his Honour had concluded that there was not “the slightest evidence before me he was going to do anything more than terrify these people”. It may be added that the offence covers an extensive range of offences, described as “serious indictable offences”, being any indictable offence punishable by imprisonment for life or for more than 5 years: Crimes Act, s 4. Intimidation was but one example.

20 The finding that the applicant intended only to intimidate was open and, no doubt, appropriate in the circumstances. Nevertheless, the fact that he took eight rounds of ammunition might have suggested that he went to the house having given himself the means by which he could at least discharge the rifle. It may be accepted that the gun was not loaded, a matter about which his Honour made no express finding, but was the basis on which he proceeded to sentence.

21 His Honour also made no finding as to the applicant’s state of mind at the time of the incident. Whether through anger or alcohol, a matter about which there was no evidence, his conduct sufficiently demonstrated that he was in a violent and angry state of mind. (Mrs Kelly described him as being “in an enraged state”.)

22 His Honour described the combination of the event and the character of the prisoner as “amazing” and “incredible”. It might more aptly have been described as saddening. The applicant was a 50 year-old man, with no relevant prior criminal record and was a person who was apparently well thought of in the community. The medical evidence demonstrated that he had a problem with alcohol abuse, which may have caused the breakdown of his marriage. A combination of alcohol abuse and anger is not unknown.

23 The evidence in the letter from Dr Evans suggests that he had had some success in overcoming his alcohol problem, prior to living for six weeks on the south coast, but had had a relapse after returning to Lake Cathie. That must have been during the period, some days before the incident, when he contacted his former wife on a number of occasions. The inference may be drawn that the break-up of his marriage was for him still an unresolved tragedy in his life.

24 The difficulty for the trial judge was that he had no evidence before him as to the applicant’s explanation for the events of the evening, nor any evidence that the applicant had insight into the causes of his behaviour. His Honour stated (p 5):

“It is imperative that the prisoner successfully resolve his heavy, uncontrolled drinking behaviour but he has a good prognosis for recovery if he receives treatment for the depression and alcohol abuse. He does not have a history of violence or aggression. He has had a series of relationship and family stresses. He suffered depression. However, he should be able to be rehabilitated from his alcohol problems.”

25 His Honour also took the view that his expressions of remorse were based on the fact that “he still cared for his wife”. No doubt he did: however, there were also undoubtedly other feelings involved. His Honour, correctly, noted that general deterrence was a significant consideration in sentencing for conduct of this kind: Judgment, p 6. He also placed weight upon the element of personal deterrence, stating (p 5):

“Giving an opinion on the risk of re-offending [Mr Nolan] would rate it as low to medium based on the information currently available. It would be low if he abstained from drinking, however, if he did not, he could very well offend again.”

The sentence imposed was expressed as intended, in part, to bring home to the applicant the seriousness of his offence and the need to take effective control of his alcohol problem: p 7.

26 The trial judge found there were special circumstances warranting a longer period on parole than the standard statutory proportion of the non-parole period.

The application for leave to appeal

27 The last-mentioned aspect of the sentencing was clearly correct and was not challenged. Nor did Ms Francis, who appeared for the applicant, suggest that a custodial sentence was inappropriate. Rather, she contended that a non-parole period of two years was excessive in all the circumstances.

28 Counsel argued that the proper approach to be adopted by the sentencing judge was one based upon “the principle of parsimony”: see DB v Regina [2007] NSWCCA 27 at [10] (Adams J). This, counsel contended, required that the lowest available penalty, sufficiently reflecting the seriousness of the offence, was that which should be imposed. In this case, she contended, a custodial sentence involving a non-parole period of 1 year would satisfy that test and that, accordingly, a non-parole period of 2 years was excessive. This approach was said to be consistent with, if not required by, s 6(3) of the Criminal Appeal Act 1912 (NSW), which provides:

“(3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.”

29 Where, as was conceded, there was no patent error in the approach adopted by the primary judge, the means by which an excessive sentence was to be identified becomes important. The argument appears to be that unless the lowest appropriate sentence is passed, the sentence passed will be one which is not warranted in law and therefore should not have been passed, engaging the obligation of the Court to quash the sentence and pass another sentence in substitution, satisfying those requirements of the law.

30 To suggest that there will not be, almost inevitably, a range of sentences which could appropriately be characterised as “warranted in law” is to misunderstand his Honour’s judgment; Adams J expressly stated the contrary in the balance of [10] through to [12]. If the “principle of parsimony” is taken to imply that there cannot be such a range, that language should be abandoned. Indeed, “parsimony” is a slightly curious word to use in this context, albeit it has, as his Honour noted, a respectable lineage in Victoria. In the South Australian case to which Adams J referred, Webb v O’Sullivan [1952] SASR 65 at 66, Napier CJ, in dealing with a traffic offence, had merely stated:

“Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.”

31 In this case, the applicant needed to demonstrate that, absent any identifiable error, the sentence imposed was excessive in the sense of being above the legitimate range of sentences which might have been thought appropriate in the exercise of the sentencing judge’s discretion, in accordance with the principles established in House v The King (1936) 55 CLR 499 at 505. As explained in the joint judgment in that case, by reference to English authority, “the court will not interfere because its members would have given a less sentence, but only if the sentence appealed from is manifestly wrong” and the court “only interferes on matters of principle and on the ground of substantial miscarriage of justice”.

32 One of the specific matters relied on for the applicant was that the applicant made no verbal threats that he was going to use the weapon or that he would hurt anyone. However, it may be doubted that the intimidation was any less for that reason. On occasion, verbal threats may be seen as bluster, while violent behaviour by a man perceived to have a loaded gun in a residential home, without any demand, explanation or verbal threat, may appear highly intimidating. The apprehension of danger to human life of an angry man with a gun in a residential home, pointing the gun directly at and searching for people in the house, is not something to be lightly dismissed. A person having no clear knowledge of the applicant’s intention, but a realistic perception that he might use the gun in anger, might easily have sought to intervene to disarm him. The possibility of some person being injured or killed must fall within the range of likely perceptions.

33 The applicant also relied upon the favourable finding that the applicant was not doing anything “more than terrify these people”. For reasons already given, that should not be seen as warranting greater leniency than has already been accorded to the applicant.

34 The applicant noted that there was “no evidence that the gun was loaded and there was no evidence of any attempt to fire the weapon for the purpose of mere intimidation”. These facts may be accepted, but they do not diminish the seriousness of the conduct in a way which would provide any warrant for this Court to interfere with the sentence imposed. Counsel produced no authority which would support the imposition of a lesser sentence in this case.

35 Finally, the applicant relied upon the subjective circumstances to which reference has already been made. Most important in this regard was the absence of any history of aggression. Counsel described the incident as the conduct of a man “who was undoubtedly genuinely attempting to address his ill-health”. In the sense that he had sought to address his alcohol abuse problems prior to the event which gave rise to the charges, that statement may be accepted. However, the report of the psychologist, conducted in the cells over a period of one hour, was the limit of the evidence before the trial judge as to the steps taken or proposed to be taken following his arrest. The absence of any further medical evidence or indeed evidence from the applicant himself, permitted the Court to draw no inference as to the degree of insight into his problems and therefore the likelihood of success in overcoming his difficulties. However, his Honour was conscious of these facts and gave them weight in his reasons for sentencing.

36 The applicant has failed to establish error in the sentencing process; it is impossible to say that the sentence in fact imposed was excessive in all the circumstances. The matter having been the subject of full argument, it is appropriate to grant leave to appeal, but the appeal must be dismissed.

37 BARR J: I agree with Basten JA.

38 ADAMS J: I agree with Basten JA.

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