Kelly v The Queen
[2015] ACTCA 35
•29 June 2015
HUMAN RIGHTS ACT
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | KELLY v THE QUEEN |
Citation: | [2015] ACTCA 35 |
Hearing Dates: | 26 June 2015 |
DecisionDate: | 29 June 2015 |
Before: | Refshauge J |
Decision: | 1. The sentence imposed upon Stanley Kelly on 28 April 2015 be stayed. 2. Bail be granted to Stanley Kelly, until the hearing of the appeal on 11 August 2015 or further order, subject to the following conditions: i. That he reside at [an address in the ACT]; ii. That he be under the supervision of the Director General on her delegate and that he obey all reasonable directions of the person supervising him; iii. That he report to the Officer in Charge of Woden Police Station each day between the hours of 8:00am and 8:00pm; iv. Subject to condition 5, that he not enter the suburbs of Canberra south of Hindmarsh Drive; v. That, despite condition 4, he may travel by the Tuggeranong Parkway and Drakeford Drive to the premises at [an address in the ACT], though under no circumstances travelling within the suburbs of Theodore or Gilmore, and be present at those premises for the purpose of packing up his property at those premises and moving it elsewhere and then leaving the premises by the Tuggeranong Parkway and Drakeford Drive, without entering the suburbs of Theodore or Gilmore, and at all times while he travels to or from the premises at Bonython and while at those premises being in the company of an adult person; vi. That he not contact, directly or indirectly, approach, hinder or harass or be within 100 metres of JF, CS, SH or BA or any of their parents or siblings; vii. That he not access any social media, including, but not limited to, those listed in the attachment to these conditions; viii. That he continue to attend the Cognitive Self-Change Program conducted by ACT Adult Corrective Services, until he completes it; ix. That he apply for admission to and, if admitted, attend all sessions of the ACT Adult Corrective Services Adult Sex Offenders Program until he has completed it; x. That he not access any internet site which contains pornography and that he permit any officer of the Australian Federal Police to access any computer to which he has access; xi. That he not be within 100 metres of any school and that he not be in the company of any child under the age of 10 years, other than his daughter, YK, except when he is in the company of another adult; xii. That he not leave the Australian Capital Territory. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Jurisdiction, Practice and Procedure – Application for bail – Appeal pending – Committing acts of indecency on young persons – Whether a stay should be granted – Whether bail should be granted – Special and exceptional circumstances – Portion of custodial sentence served before the appeal is heard – Expiry of non parole period – Refusal by Sentence Administration Board to grant parole – Delay in hearing the appeal |
Legislation Cited: | Bail Act 1992 (ACT), ss 5, 9E Human Rights Act 2004 (ACT), ss 18, 22, 28 Court Procedures Rules 2006 (ACT), r 6 |
Cases Cited: | Alexander v Cambridge Credit Corporation Ltd Receivers Appointed (1985) 2 NSWLR 685 Cellante v G Kallis Industries Pty Ltd [1991] 2 VR 653 |
Parties: | James Stanley Kelly (Appellant) The Queen (Respondent) |
Representation: | Counsel Self-represented (Appellant) Mr J Hiscox (Respondent) |
| Solicitors Self-represented (via video-link) (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | ACTCA 18 of 2014 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Murrell CJ Date of Decision: 15 April 2014 Case Title: R v Kelly Court File Number: SCC 64A of 2012 |
REFSHAUGE J:
On 15 April 2014, the appellant, James Stanley Kelly, was convicted by a jury of five counts of committing acts of indecency on young persons. He also pleaded guilty to one count of that offence.
On 28 April 2014, Mr Kelly was sentenced to a total period of four years imprisonment, to commence on 10 August 2012, apparently to take into account pre‑sentence custody, and a non parole period of two years and six months was set to commence on 10 August 2012 and end on 9 February 2015.
On 6 May 2014, Mr Kelly appealed against his conviction.
Despite that, his appeal has not yet been heard. He says that the respondent, represented by the Director of Public Prosecutions, has delayed the appeal by refusing to supply him with help and required documents. I am not in a position, nor do I need, to make a finding on that issue, save to say that the delay in having the appeal heard is highly undesirable and that I am aware of the difficulties of unrepresented litigants, as Mr Kelly is, being able to prepare properly to appeal to this Court, though a number of unrepresented appellants do manage to do so.
In this case, I understand that the Court, though not funded for the task, has taken the step of preparing the appeal books. The appeal has now been listed for hearing on 11 August 2015. In any event, Mr Kelly has now applied for bail. The grounds for his application are that his non-parole period has expired now, but that the Sentence Administration Board will not grant him parole whilst his appeal is pending. That is not quite correct, though there is some truth in his assertion.
He says that his preparation for the appeal is also being hampered by his continued incarceration as he needs access to a computer, apparently not adequately available in the Alexander Maconochie Centre, and that he needs to seek legal assistance which is not presently available to him while he is in custody.
Jurisdiction
In Sherd v The Queen (2011) 5 ACTLR 290, I held that this Court had power to grant bail pending an appeal to an appellant to this Court in special and exceptional circumstances. It was a non‑statutory power as an incident to the appellate power of the court to effectuate the grant of appellate jurisdiction. I also held that it was a special or an exceptional circumstance that the sentence would have been fully or substantially served before the appeal is heard. In Quzag v The Queen [2015] ACTCA 9 at [4], I pointed out that this applied to the custodial portion of the sentence. I also held that the prospects of success of the appeal will be an important matter to be considered in an appropriate case.
There was no appeal from the decision in Sherd v The Queen and that decision has been followed a number of times. In that decision, however, I held that it was not necessary to make a stay order before granting bail. This followed the approach of the High Court. In Robinson v The Queen (1991) 65 ALJR 519, Gaudron J said:
The jurisdiction of this court to grant bail is non-statutory. It is part of the inherent jurisdiction of the court which exists to serve the ends of justice and to perfect the administration of justice.
That is the position in the Territory. The power stems from the jurisdiction of the court to hear appeals and as an incident of that power to do all that is necessary to effectuate that purpose, including the power to stay orders the subject of the appeal so as to preserve the subject matter of the appeal and, as an incident of that, to grant bail. See United Mexican States v Cabal (2001) 209 CLR 165 at 180-1.
The High Court has continued to grant bail without making an order for a stay, although there was no statutory basis for the grant of bail. See Doggett v The Queen [2000] HCA Trans 667 (2 November 2000), Marotta v The Queen (1999) 160 ALR 525, Pelechowski v Registrar, Court of Appeal (1998) 72 ALJR 711, Peters v The Queen (1996) 71 ALJR 309, Chew v The Queen(No 2) (1991) 66 ALJR 221 and Re Cooper’s Application for Bail [1961] ALR 584.
Since 2004, however, r 8.07 the High Court Rules 2004 (Cth), provides an express power for the grant of bail. None of the decisions of the High Court refusing bail prior to 2004, and there are a number of reported cases, has suggested that the grant of a stay is necessary before a grant of bail can be made.
The position in this Territory, however, is affected by statute, and this was something that I did not completely address in Sherd v The Queen. The argument goes in this way. Section 5(2)(b) of the Bail Act 1992 (ACT), prohibits the court from granting bail to an applicant if "[t]he person is serving a sentence of imprisonment." That prohibition, it is submitted, would prevent the grant of bail to a person in the position of Mr Kelly, even as an incident to the power to give full effect to the appellate jurisdiction of this Court.
If, however, the court makes a stay order in respect of the sentence, then Mr Kelly would no longer be serving a sentence of imprisonment. He would be in custody because he is subject to the jurisdiction of the court pending the determination of the proceedings, unless bail was to be granted. Bail can, in those circumstances, be granted, though it is then subject to the provisions of s 9E of the Bail Act. That section provides:
9E Bail for person sentenced to imprisonment
(1) This section applies if—
(a) a person has been convicted of an offence by a court and sentenced to a period of imprisonment for the offence; and
(b) an appeal is pending in relation to the conviction or sentence.
(2) A court must not grant bail to the person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.
(3) In this section:
appeal includes an appeal against a decision on appeal.
This provision regulates the grant of bail pending appeal, so long as the prohibition in s 5 of the Bail Act is overcome by a stay order. The two sections are not inconsistent, for while Mr Kelly has been convicted of an offence by a court and sentenced to a period of imprisonment for the offence because the conviction and sentence imposed (see R v Kelly (Unreported, Australian Capital Territory Supreme Court, Murrell CJ, SCC 64A of 2012, 28 April 2014) at [35]-[36]), the stay means that the prohibition on the grant of bail in s 5 of the Bail Act is no longer effective.
Thus I accept that I was wrong in Sherd v The Queen in holding that, in the particular statutory context of the Territory, it is not necessary to grant a stay before granting bail to an appellant to this Court who is serving a term of imprisonment. Like Lord Denning in Sparham-Souter v Town and Country Developments (Essex) Ltd [1976] QB 858 at 869, I recant. Interestingly, such an approach will likely mean that s 37Q of the Supreme Court Act 1933 (ACT), will rarely, if ever, have any work to do.
The power to stay the execution of a sentence is found in the High Court's decision in Tait v The Queen (1962) 108 CLR 620 at 624. This is there described "so that the authority of the court can be maintained." It was expressed in more detail by Barry J in Ryan v Attorney-General for Victoria [1967] VR 514 at 515, as follows:
[I]t is the duty of a superior court of general jurisdiction to preserve in existence the subject-matter of legal proceedings properly instituted in the Court, whether that subject-matter be a human being or any other object of legal significance, until the proceedings, including those of an appellate nature, have been completed, and that it necessarily follows from that obligation that the Court has an inherent power to make whatever order is required to restrain the destruction of the subject-matter of the proceedings.
The making of a stay is, as stated by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 684, a civil case, not a criminal case:
An extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted.
This characterisation is close to the test that applies under s 9E of the Bail Act for the grant of bail.
There are, in civil proceedings, some differences between courts of appeal as to the precise test. In Cellante v G Kallis Industries Pty Ltd [1991] 2 VR 653 at 657, the appeal division of the Victorian Supreme Court held that an applicant for a stay had to show special or exceptional circumstances before a stay would be granted and relied particularly on an earlier decision of Scarborough v Lew's Junction Stores Pty Ltd [1963] VR 129 where it was said that the circumstances justifying a stay will exist “where there is a real risk that the appeal [if successful] will prove abortive if the applicant were not granted a stay." See also Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222-3 and Deputy Commissioner of Taxation v Fontana [1989] WAR 262 at 264.
In the leading case in New South Wales, Alexander v Cambridge Credit Corporation Ltd Receivers Appointed (1985) 2 NSWLR 685 at 693-5, the court rejected the requirement of "special and exceptional circumstances" and held that the applicant was required "to demonstrate a proper basis for a stay that will be fair to all parties" and identified some of the relevant factors.
In the ACT Supreme Court, the matter was discussed by Miles CJ in Griffiths v Australian Postal Commission (1987) 87 FLR 139 at 141. His Honour considered that it was "misleading and probably putting it too high to say that the applicant must show exceptional circumstances". His Honour considered the differences between the Victorian and New South Wales courts and said, at 141:
In any event, it seems to me that upon an analysis of the cases in recent years any distinction between the practice in Victoria and that in New South Wales is more apparent than real. It is obvious that an applicant for a stay of execution upon a judgment has to make out a case why the judgment should not be enforced. A rule of court providing that an appeal does not of itself operate as a stay unless the court or a judge orders a stay may do nothing more than cast an onus upon the applicant for the stay to convince the court or the judge that the discretion to order the stay should be exercised.
An applicant for a stay of execution pending an appeal can hardly hope to succeed if he or she does not show that there is a reasonable arguable ground of appeal, but this does not mean, and should not mean, that the court or judge hearing the application for the stay should necessarily enter upon provisional hearing of the appeal assessing its chances of success on a percentage basis.
The discretion to grant the stay is a wide one, and what is aimed at is justice in all the circumstances. An applicant for a stay of execution pending appeal is, in my view, neither obliged to reply upon nor restricted to rely upon matters which have been persuasive in favour of a stay in past reported judgments.
In the light of these authorities, it does not seem to me that the test for granting a stay will be more stringent or very different, unless it is less high a threshold, than the statutory test for granting bail. In argument, no submissions were made to me suggesting to the contrary. All that was effectively submitted was that there must be consideration of a stay and then an addressing of bail.
There may well be circumstances where, in criminal appeals, a stay is sought and is warranted, even though the appellant is not in custody. Where, however, an appellant is in custody, it is difficult to see a proper basis for granting a stay and not granting bail. That is, of course, different from the situation in respect of appeals from the Magistrates Court where, under s 216 of the Magistrates Court Act 1930 (ACT), the lodging of a Notice of Appeal automatically stays the orders of the Magistrates Court.
That, however, does not require a court to consider, as a matter of discretion, whether a stay should be granted. Where there is such a discretion, it is difficult to see why a court would grant a stay of a sentence of imprisonment and yet decline to grant bail. None at least was suggested to me. In any event, an applicant who applies for a stay and bail is likely to withdraw the application should the court indicate that it would grant the stay but not bail.
Accordingly, while the court must consider both whether a stay should be granted and whether bail should be granted, the test applied to both of those appears to be, if not the same, at least able to be dealt with together. As a statutory matter, the court must address the question of whether bail should be granted on the basis of s 9E of the Bail Act, namely, whether special or exceptional circumstances exist favouring the grant of bail. In my view, if that is shown, then the test of whether a stay should be granted will, on the basis of the authorities I have considered, be made out.
Mr Kelly did not seek a stay in his application. He is unrepresented. I consider that I can consider whether a stay should be granted notwithstanding that omission. There does not seem to me to be any prejudice in doing so and none was identified. In fact, Mr Kelly used an incorrect form of bail. He used a form designed for applications to the Supreme Court, not to this Court. Clearly, s 255(4) of the Legislation Act 2001 (ACT) would resolve that. Again, no prejudice was suggested. So far as is necessary, I shall, under r 6 of the Court Procedures Rules 2006 (ACT), dispense with such requirements as would prevent me considering whether to grant a stay to Mr Kelly of the sentence he is serving and bail.
A question arises as to the dates of Mr Kelly's non parole period. In R v Kelly at [36], the non parole period is expressed to be set by the Court as beginning on 10 August 2012 and ending on 9 February 2015; that is, two years and six months, which was the period specified. Indeed, the sealed order of the Court specifies those dates.
For some reason unexplained to me, the non parole period referred to in the Pre-Release Report submitted to the Sentence Administration Board was 9 May 2015. I do not know how that happened but clearly Mr Kelly has been disadvantaged by this. In any event, both dates have now passed. Thus, since the whole of the mandatory custodial portion of his sentence has now been served, it seems to me that this is a special or exceptional circumstance that justifies a grant of bail.
In Ex parte Maher [1986] 1 Qd R 303 at 311-2, Thomas J addressed two of the key considerations in establishing exceptional circumstances supporting a grant of bail pending an appeal saying:
In some cases it may be possible to discern immediately a patent error in the proceedings below which indicates that the applicant has a good chance of success upon appeal. This may afford sufficient reason to grant him bail ... In some cases an appellant may inevitably be required to serve an unacceptable portion of his sentence before his appeal can be heard. This commonly occurs when the main penalty is a short custodial term. Indeed, experience suggests that these instances are the most common examples of favourable exercise of discretion for applicants for bail after conviction.
The relevant considerations have been more recently addressed in Lee v The Queen (2012) 224 A Crim R 278. Hall J carefully analysed a number of the relevant authorities. His Honour pointed out that one factor may be sufficient or a number of factors, in combination, may be required to satisfy the test of special or exceptional circumstances.
His Honour pointed out that, where the prospects of success are put forward as a relevant factor, more must be shown than that there is a merely arguable ground of appeal or even one which has reasonable prospects of success. The length of the sentence, his Honour said, and the issue of delay, may be relevant factors and the relationship between the expiry of the non parole period, the date of hearing of the appeal and the length of time before an appeal can be heard will be relevant.
Ordinarily, as I have pointed out, it is also necessary to consider the likely prospects of success of the appeal, though not in detail. It must be decided that the appeal has at least an arguable prospect of success though, as noted above, this is no sufficient condition. In the particular circumstances of this case, it does not seem to me that this is required as would be if the non parole period had not expired.
This case, however, raises other issues. Despite the delay in addressing his parole application, some three months after the expiry of his non parole period, the Sentence Administration Board did so on 28 April 2015. It refused the application. This raises a delicate matter, for it would be quite inappropriate were the application for bail to be seen as a collateral challenge to that decision from which there is otherwise no appeal. Nevertheless, I am bound to consider the application for a stay and for bail, but the refusal to grant parole must be a factor to which I should have regard.
I have been fortunate in having a copy of the Pre-Release Report prepared by ACT Corrective Services, a copy of a submission made by the mother of one of the victims and a transcript of the hearing before the Sentence Administration Board.
The Pre-Release Report recommended that parole not be granted. The reasons are not entirely clear. Mr Kelly has been assessed as at a moderate to high‑risk of sexual reoffending, the main issue being "his unwillingness to accept treatment for the offence to which he concedes his guilt". There are two matters to note about that. The first is that this is a reduction in risk from that at sentencing, which was said to be a high‑risk of reoffending (R v Kelly). The second is that earlier in the Report it stated:
As a result of Mr Kelly's current appellant status he is not eligible to commence the Adult Sex Offender Program.
Indeed, Mr Kelly told the Sentence Administration Board that, "They will not let me do the sex offence program because I have lodged an appeal." He added, "I told them that I am willing to do the course," a comment he repeated both to the Board and also to me in the hearing of the bail application. It seems to me that the comment in the Pre‑Sentence Report about the reason for the assessment as to his risk of reoffending is rather disingenuous and apparently designed to affect his opportunity to gain parole, though, of course, I cannot make any such finding without hearing from the relevant parties. It is, however, difficult to see how the comments in the Report to which I have made reference can be made consistent.
This matter is highly problematic. There are two rights recognised in the Human Rights Act 2004 (ACT), which are at issue. The first is that recognised in s 18 of the Human Rights Act, namely, the right to liberty. If the appropriate conditions for parole exist, then Mr Kelly should be able to access it. The other is that recognised in s 22 of the Human Rights Act, namely, a right to have a conviction reviewed by a higher court. The two are not in conflict and there is no necessary reason for them to conflict. It would be invidious for access to parole to rely on Mr Kelly withdrawing his appeal and, unless there is some justification that would meet the stringent test set out in s 28 of the Human Rights Act, such a conflict cannot be permitted.
Mr Kelly has also not completed the Cognitive Self‑Change Program. He commenced that on 3 March 2015. He did express to the Board and to me some scepticism about the relevance of the program. On the other hand, the Pre-Release Report stated that, "Mr Kelly's engagement in the program thus far has been satisfactory." There seems no reason why this should prevent a grant of parole. There was no explanation for the delay in starting the program, though there was a reference to the security status of Mr Kelly in the Alexander Maconochie Centre. In any event, the program can be completed in the community.
Mr Kelly was, in his rather belligerent style, sceptical of the point of doing the program were parole to be denied, as he would simply serve his full term and be released without conditions, whether he had completed the program or not. While that has a sense of factual reality, it hardly suggested a commitment to the program. Nevertheless, his participation has been satisfactory and there is no reason to suggest that it would change if he were required to complete it.
It was suggested that this meant that he was undertaking the program for "personal gain rather than for the purpose of meaningful rehabilitation". The reality is, however, that if the Board, as its decision implied it did, wished him to complete the program, it can only send the clear message that this requirement is for personal gain, namely, to access parole. It seems to me that it is up to the quality of the program to ensure that it provides the opportunity for meaningful rehabilitation, as we do know from the relevant research that mandated rehabilitation can be successful.
The Pre-Release Report also stated that a home visit resulted in his home being deemed as not suitable, primarily due to victim issues. Victim issues were identified in the Board hearing as being the close vicinity of the victims' residence, employment and schooling. Mr Kelly indicated to the Board that he was seeking a relocation to the Woden area and this would, it appears quite clearly from the transcript, satisfy the concerns of the Board. I shall return to that aspect later.
The submission of one of the victims' mothers requested that parole be refused. This was based in large part on the fact that the victim was making good progress in regaining her physical and emotional wellbeing and that her knowledge of his release may set that back. The other allegations which suggest the commission of criminal offences by Mr Kelly were made at the hearing by police and prosecutors, however no charges have been laid arising from those allegations, which suggests that they should not be given high prominence in a consideration of parole. There was also a suggestion of manipulative behaviour by Mr Kelly. This was on one occasion and Mr Kelly denies any culpability. Certainly he acted, objectively, in a proper way. It is not possible to make a finding on this matter which would be relevant to an alleged breach of bail.
The concerns of the victims must not be dismissed and must be treated seriously. They must be taken into account. They cannot, however, be determinative. The submission requests that, if parole is granted, Mr Kelly be prohibited from being in the Tuggeranong Valley, from accessing social media or from approaching, directly or indirectly, any of the victims.
I have read the transcript of the hearing before the Board and its decision carefully. It appears to me that the principal reason for refusing parole is that Mr Kelly would return to live in the Tuggeranong Valley. The non‑completion of the programs was relevant but not, it appears to me, determinative. For example, the Board said that it "would like to see him finish the Cognitive Self‑Change course". It also invited him to start the Adult Sex Offender program "if that opportunity arises" but it added that it may nevertheless consider commencement appropriate for parole and completion of the program in the community.
Mr Kelly has made his claim for bail on the following grounds. He says that the hearing of his appeal has been delayed through no fault of his own. He says that he was on bail prior to the trial and did not breach any condition. That needs to be seen in the context of an allegation of a breach, a serious breach, but it does not seem to have ever been proved.
There is no explanation for the delay in bringing the appeal on for hearing. The Notice of Appeal was lodged on 6 May 2014, now over 13 months ago, and over 15 months to the date of the hearing of the appeal. Inspection of the court records enables me to find as follows. There was, it appears, some delay in obtaining the transcript, but it appears to have been provided to Mr Kelly in August 2014. There was then delay in the Crown obtaining the transcript of the pre‑trial hearing which, it appears, was not sought until September 2014. What caused that delay was not explained. The Director of Public Prosecutions did, however, agree to assist in preparing the index of the appeal papers.
It appears that some of the documents required for the appeal book were found to be missing. In November 2014, the index drafted by the Director was considered but there were still apparently ongoing issues with the appeal book. Finally, in late November 2014, a direction was made that the Court of Appeal Registry assist Mr Kelly with obtaining certain material, including such obvious matters as the decision of Burns J in R v JSK [2013] ACTSC 147, the decision on the tendency application, a matter, one would have thought, which could have been done quickly.
There were still such issues in March 2015. It is difficult to understand why they were not resolved at that time. By April 2015, it was decided that the Registry would assist in the preparation of the appeal books and prepare the necessary eight copies. It is difficult not to regret that it had taken so long to come to the realisation that this was needed but without much more information it is not possible for me to decide other than that this result is entirely undesirable.
Mr Kelly seeks bail because he needs to be at large to prepare properly for the appeal, namely, to seek legal assistance, retrieve documents for the appeal and prepare his submissions. By itself, such a reason is not sufficient. It is well known that a person at liberty is better able to prepare for legal proceedings, including an appeal. Nevertheless, it is not the law that merely by filing a notice of appeal bail will be granted.
At the hearing of the bail application, Mr Kelly indicated that he is able to reside with his brother at an address in Yarralumla. This would meet the concerns of the victims and those expressed by the Sentence Administration Board.
It was submitted by the Crown that the proximity of the appeal meant that bail should not be granted. That seems to me to cut both ways. Given the proximity of the appeal, bail will be most valuable to Mr Kelly to prepare for the appeal. Indeed, further delay is likely to hamper his preparation.
The expiry of the non-parole period, the new residence accessible to Mr Kelly, the delay in having his appeal prepared and listed, the need for him to be at liberty to prepare for the appeal and the capacity for bail conditions to restrict his access to the victims and to require him to complete programs seem to me to amount, in combination, to special and exceptional circumstances. In my view, this is consistent with the tenor of the decision of the Sentence Administration Board and does not imply that its decision was other than correct on the material it had before it.
I did consider whether I should simply direct that instead of granting bail I should refer the matter back to the Board for a fresh determination with the new material. I am aware that it takes time, at least a month, for such an application to be properly heard. This is entirely proper. In the circumstances, however, there is not such time reasonably available prior to the hearing and the appeal. In any event, I am not granting Mr Kelly parole; it is only bail before the appeal hearing.
I have not disregarded the concerns expressed by one of the victims' mothers. I have taken them into account as fully as I can, consistent with what I see as the relevant law, and will try, in the conditions of bail, to minimise the negative results for her daughter.
Mr Kelly has a criminal record. Excluding the offences the subject of the appeal, he has been convicted of 46 offences, of which 29 are traffic offences, though these include an offence of drink-driving. Of more concern are nine offences of resisting arrest or hindering police. There are also offences of dishonesty and, worryingly, two offences of a sexual nature, including the one to which he pleaded guilty in this trial. Apart from that offence, however, the most recent offence was committed in 2004, with a speeding offence in 1992, and all of the other offences were committed on or before 1987.
Accordingly, I will grant a stay of the sentence imposed on Mr Kelly until further order and will grant him bail pending the hearing and determination of his appeal. Mr Kelly must recognise that he will, if the appeal is dismissed, and possibly even if it is only partly upheld, return to custody and must then seek a further application for parole.
I will grant bail to Mr Kelly, until the hearing of the appeal or further order, subject to the following conditions:
i. That he reside at [an address in the ACT];
ii. That he be under the supervision of the Director General on her delegate and that he obey all reasonable directions of the person supervising him;
iii. That he report to the Officer in Charge of Woden Police Station each day between the hours of 8:00am and 8:00pm;
iv. Subject to condition 5, that he not enter the suburbs of Canberra south of Hindmarsh Drive
v. That, despite condition 4, he may travel by the Tuggeranong Parkway and Drakeford Drive to the premises at [an address in the ACT], though under no circumstances travelling within the suburbs of Theodore or Gilmore, and be present at those premises for the purpose of packing up his property at those premises and moving it elsewhere and then leaving the premises by the Tuggeranong Parkway and Drakeford Drive, without entering the suburbs of Theodore or Gilmore, and at all times while he travels to or from the premises at Bonython and while at those premises being in the company of an adult person;
vi. That he not contact, directly or indirectly, approach, hinder or harass or be within 100 metres of JF, CS, SH or BA or any of their parents or siblings;
vii. That he not access any social media, including, but not limited to, those listed in the attachment to these conditions;
viii. That he continue to attend the Cognitive Self-Change Program conducted by ACT Adult Corrective Services, until he completes it;
ix. That he apply for admission to and, if admitted, attend all sessions of the ACT Adult Corrective Services Adult Sex Offenders Program until he has completed it;
x. That he not access any internet site which contains pornography and that he permit any officer of the Australian Federal Police to access any computer to which he has access;
xi. That he not be within 100 metres of any school and that he not be in the company of any child under the age of 10 years, other than his daughter, YK, except when he is in the company of another adult;
xii. That he not leave the Australian Capital Territory.
| I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 31 July 2015 |
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