Kelly v The Queen - [2000] NTCCA 3

Kelly v The Queen [2000] NTCCA 3
PARTIES:KELLY, Eric Allan

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 7 of 1999
DELIVERED:  30 June 2000
HEARING DATES:  10 April 2000
JUDGMENT OF:  MARTIN CJ, ANGEL & MILDREN JJ
CATCHWORDS:

CRIMINAL LAW
Appeal – general principles – interference with Judge’s finding of fact – uncontroverted facts
Sentencing Act 1995 (NT), s 5(2)(J)
Staats v R (1998) 123 NT 16, applied
Siganto v The Queen (1998) 105 A Crim R 184, applied
R v Ireland (1987) 49 NTR 10, applied
R v Jabaltjari (1989) 64 NTR 1, applied
R v Mulholland (1991) 1 NTLR 1, referred to.
Whether sentencers to reveal the extent of discount given for a plea of guilty
Corrigan (1993) 70 A Crim R 53, considered
R v Harris & Simmonds (1992) 59 SASR 300, considered
Pavlic v The Queen (1995) 5 Tas R 186, considered
Criminal Law – general matters – sentencing - whether to depart from the rule of concurrency
Pearce v R (1998) 156 ALR 684, applied
Sentencing Act 1995 (NT), s 50
Criminal Code 1983 (NT), s 187, 188(1)(2)(c), s 188(2)(m), s 213(1)(4)(5) & (6) and s 214(5)
Sentencing Act 1995 (NT), s 5(2)(J) and s 50
Justices Act 1928 (NT), s 109(3)(b)
REPRESENTATION:
Counsel:
Appellant:R Coates
Respondent:  J Blockland
Solicitors:
Appellant:NTLAC
Respondent:  DPP
Judgment category classification:      B
Judgment ID Number:  mar20007
Number of pages:  16

Mar20007
IN THE COURT CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Kelly v The Queen [2000] NTCCA 3
No. CA 7 of 1999

BETWEEN:
ERIC ALLAN KELLY

Appellant
AND:
THE QUEEN

Respondent

CORAM: MARTIN CJ, ANGEL & MILDREN JJ
REASONS FOR JUDGMENT
(Delivered 30 June 2000)
THE COURT:

Application for leave to appeal against sentence (Criminal Code 1983 (NT), s410(c)). At the commencement of the hearing the Court indicated it would hear the application for leave and the submissions on the grounds of appeal together.

On 10 September last the applicant pleaded guilty before the Supreme Court for that:

“Count 1
On 27 May 1999 at Marrakai near Darwin in the Northern Territory of Australia, unlawfully entered a building, namely the dwelling at Lot 5312 McGorrie Road, with intent to commit an offence therein.
AND THAT the said unlawful entry involved the following circumstances of aggravation:
(i)that the said Eric Allan Kelly intended to commit the crime of assault therein,
(ii)that the said building was a dwelling house,
(iii)that the said dwelling house was occupied at the time of entry,
(iv)that at the time of the unlawful entry the said Eric Allan Kelly was armed with a dangerous weapon, namely, an iron pipe.
Section 213(1),(4),(5)&(6) of the Criminal Code.
Count 2

On 27 May 1999 at Marrakai near Darwin in the Northern Territory of Australia, unlawfully assaulted Alan Robert Tudehope,
AND THAT the unlawful assault involved the following circumstances of aggravation:
(i)that the said Alan Robert Tudehope suffered bodily harm,
(ii)that the said Alan Robert Tudehope was threatened with an offensive weapon, namely, an iron pipe.
Section 188(1),(2)(a), and (2)(m) of the Criminal Code.”

As to the first count, the references to s 213(4) and s 214(5) of the Criminal Code appear to be superfluous. The maximum penalty for that offence with the specific circumstance of aggravation specified is imprisonment for life. The applicant was sentenced to six years imprisonment. The maximum penalty for assault with the specified circumstance of aggravation is imprisonment for five years, for which the applicant was sentenced to two years imprisonment. Unless otherwise provided by the Act, or the court otherwise orders, the terms of imprisonment are to be served concurrently (Sentencing Act 1995 (NT) s 50). It was ordered that the period during which the applicant not be eligible for parole be fixed at three years, and that the imprisonment be regarded as having commenced on 8 June 1999 to take into account time spent in custody.
There was an apparent difference between the facts put forward by the Crown and those put forward by the appellant before the learned sentencing Judge. It is a difference which if not fully appreciated carries a potential for significant effect upon the sentencing outcome. It goes to the nature of the “assault” which it was alleged the applicant intended to commit as specified in par (i) of the circumstances of aggravation to Count 1. The Crown facts, admitted by the accused, relevant to this aspect of the matter were as follows:
Between 10pm and 10.30pm on Thursday 27 May 1999 the applicant was at his residence in Marrakai near Darwin and saw the victim drive into his residence on the opposite side of the road. The victim lived in a bus which he entered and closed the door. The applicant was angry because he believed the victim had stolen some unregistered firearms that belonged to him and which he had left on the victim’s property. The applicant picked up a piece of iron water pipe and walked over to the bus, opened the door and walked in. The victim was lying on a bed at the back of the bus and sat up when the applicant entered. The applicant asked the victim where the firearms were and then struck the victim on the left arm with the iron pipe breaking the victim’s arm. After reciting further facts to do with the physical assault with the iron pipe, the prosecutor said that the applicant had told police that he had “picked up the iron pipe before walking to the victim’s residence because he thought he might have to use it”. The nature of the use to which the applicant thought the pipe might be put was not specified, and the intent which the Crown alleged the applicant had when he entered the bus in relation to the question of assault was not made clear. It seems to us that the use to which the pipe may have been put was in a physical assault upon the victim, a threat to him or perhaps by way of self defence should the victim have attacked the applicant.
In his address to the trial Judge, counsel for the appellant stressed on behalf of his client that he did not go to the bus with the intention of striking the victim:
“He took the pipe there as protection in case the fellow had the firearms and they were used against him. And he also took the pipe in the hope that the fellow would see that he meant business and the threat of him being there would induce Mr Tudehope to tell the truth”.
Counsel for the Crown did not attempt to assert that that version of the facts did not accord with the Crown position (R v Olbrich (1999) 166 ALR 330 per Kirby J at p 336 par 25).
In sentencing, the learned trial Judge did not reflect upon what was put by counsel for the appellant, and apparently accepted by the Crown, as to the applicant’s intention when he entered the bus. The Judge accurately set out in the sentencing remarks what had been put by the Crown. The distinction between the various uses to which the pipe may have been put and the applicant’s intention when he went into the bus with it were not addressed, and no mention was made of what was asserted on behalf of the applicant in that regard.
Although the direct application of force to a person and threatened application of such force falls within the definition of “assault” s 187 Criminal Code, we consider that the difference between an entry into the bus with the intention of physically assaulting the victim with the pipe is a more serious example of the offence than entry into the bus with the intention of threatening the victim with the pipe.
The physical assault upon the victim with the pipe (Count 2) which commenced in the bus was continued outside during the course of further argument about the firearms. At the conclusion of the argument and search for the firearms, during which the assaults continued, the applicant lifted the victim onto the tray of a motor vehicle and offered to clean him up, but the victim declined the offer, and then returned to his bus whereupon the applicant left the scene.
In the course of the physical assault, the victim suffered injury by way of a broken left arm, four large lacerations to his head, which required stitching, and numerous cuts and bruises to his body. An assault carried out over a prolonged period with a weapon, such as a piece of water pipe is a serious example of that type of offending and both the applicant and the victim must consider themselves lucky that no greater harm was occasioned to the victim.
During the day preceding the commission of these offences the applicant had been working as a volunteer bush fire fighter, following which he had dinner and he and some of his fellow fire fighters drank alcohol. He became intoxicated to a degree.
The argument between the two men arose when the applicant tried to retrieve from the victim some unregistered firearms owned by the applicant which had been hidden on the victim’s property, with the consent of the victim, under a hollow log. The applicant sought to retrieve them and when they could not be found he came to the view that the victim had stolen them. He had asked the victim as to their whereabouts on occasions prior to that upon which the offences took place and the victim had denied any knowledge of the whereabouts of the firearms. According to the applicant, when he went into the bus with the intent of threatening the victim, the victim had said that he knew nothing about the whereabouts of the firearms, whereupon the applicant took the view that the victim was continuing to lie to him, lost his temper and struck out at him with the pipe. The applicant accepted that what he did was an over reaction and expressed his remorse to the Court for the injury suffered by the victim, accepting that he had lost his self control and had gone too far. It may be that his mental condition, to which reference will be made shortly, had something to do with that.
Another feature of the case which was urged on behalf of the applicant upon appeal was the undisputed assertion that on the day after the offences were committed he had voluntarily gone to the police and admitted his involvement well before the police obtained any formal complaint or statement from the victim. He was subsequently interviewed and made full admissions, telling the police what he had done and why he had done it. It was also pointed out that he had admitted the facts alleged against him on the committal proceedings, and had it not been for the lack of jurisdiction in the Court of Summary Jurisdiction, he had intended to enter a plea of guilty there, (Justices Act 1928 (NT), s 109(3)(b)).
The applicant was aged 42 at the time of the offending. From 1972 he had been convicted of a number of offences in Western Australia, mainly in matters related to alcohol and cannabis, similarly, in the Northern Territory, from 1991 to 1998. There was a conviction in Western Australia in 1984 for acts intending to cause grievous bodily harm for which he was imprisoned for six years with a non-parole period of two years and six months. In 1987 he was convicted for common assault and fined $500. He was not entitled to be treated as a person of good character.
It was put that he had had a difficult start in life, had left home at the age of 14, and prior to sustaining a head injury he had a good consistent work record, primarily in the steel fabrication trade.
A former relationship did not survive his incarceration in 1984. He came to the Territory in about 1989 where he obtained a job in Darwin and later in Alice Springs. He returned to Darwin in about 1992, shortly after which he was seriously assaulted during which he was kicked in the head and suffered injury. He has never really been able to work since that time, but has undergone some training with a view to his rehabilitation.
After his return to Darwin he entered into a further relationship from which there was born a daughter, about four years ago, and although the mother of the child has separated from him, they have maintained a close friendship and he has taken over the sole care of the child. His difficulties in obtaining work and a wish to secure a good future for the child led him to take an interest in the block at Marrakai where he set about agricultural and other primary industry pursuits. As a consequence of his being taken into custody in relation to these offences his work on the block has turned to naught and his daughter has returned to live with her mother.
There was medical opinion that the consequences of the assault upon the applicant in 1992 were such that it would be expected to lead to medium term disturbance at higher brain functions. It was suggested that there may be some subtle residual long term effects. He was seen by Dr Walton, consultant psychiatrist on 9 September 1999 and in the psychiatrist’s opinion the applicant remained of normal intelligence. He noted that the applicant had told him that when he was confronted with simultaneous multiple demands he tended to become more confused and quite easily distracted, but there was no evidence of any psychotic disturbance. In the psychiatrist’s opinion the applicant had sustained a significant head injury with persisting cognitive deficit and personality change, those features being consistent with the region of the brain which was damaged.
The following passage appears in Dr Walton’s report:
“It would be fatuous to suggest that Mr Kelly’s tendencies towards exhibiting aggressive behaviour are totally explicable on the basis of his head injury as he has a history of aggressive behaviour prior to that, although the total number of such incidents during the course of his lifetime have been few. That Mr Kelly might resort to violence to resolve interpersonal problems no doubt relates back to the adverse modelling provided by his father. However, the head injury does have relevance in the sense that whatever proclivities towards aggression may have afflicted Mr Kelly prior to his being brain damaged more than likely have been aggravated by the brain injury. As indicated above, he would also be sensitive to the adverse effects of alcohol and thus while he may not have been in an advanced state of intoxication at the material time, his alcohol intake may also have raised the risk of his behaving aggressively.
This man certainly gives an account of provocative (psychological rather than legal) circumstances preceding the incident and he was a person relatively ill-equipped because of his underlying personality and especially because of the brain injury to cope adequately with that situation”.
On the basis of Dr Walton’s report the learned sentencing Judge accepted that general deterrence was not a significant factor in sentencing the applicant, but emphasised the need for specific deterrence, saying that the community was entitled to protection from such a violent act of aggression. There was taken into account to the applicant’s credit, his plea of guilty for which it was said, “he must be given a substantial discount”, mention was particularly made of the expression of remorse contained in the plea, his sparing the victim the ordeal of giving evidence and the savings to the community of the expense of a trial. The value of the plea was also improved given that it was indicated from the outset.
The grounds of appeal were that the sentence was manifestly excessive, and that insufficient weight was given to the applicant’s plea of guilty indicated at the earliest possible opportunity.
We consider that the sentence of six years imprisonment in respect of the sentence of Count 1 involving as it did an intention only to threaten the victim with the pipe was manifestly excessive. It is undoubtedly a serious offence. Members of the public resident in their dwellings are entitled to protection from the courts from armed people who enter upon them intending to threaten them for whatever purpose. It is important to note that it is not an element of Count 1 that the victim was in fact assaulted, that is the subject of Count 2. We think it likely that the significance of the distinction may not have impressed itself upon the learned sentencing Judge because of the way in which the Crown facts were put. Perhaps what was said on behalf of the applicant in that regard was overlooked as no mention of the applicant’s version of the matter was made in the course of the sentencing remarks.
As to the plea, in R v Jabaltjari (1989) 64 NTR 1, this Court discussed the weight to be given to a plea of guilty, where the authorities to that time were thoroughly canvassed. All members of the Court rejected the suggestion that any weight could be given to a plea merely because the effect of the plea was to demonstrate a willingness to cooperate in the administration of justice by saving the expense and inconvenience of a trial: see Asche CJ at p 7 and p 15; Martin J at p 30; Angel J at p 34. Although invited to do so on that occasion by the Solicitor General, the Court declined to indicate what, if any, discount should be given from an otherwise proper sentence for a plea, except in general terms, as the factors relevant to the weight to be given to the plea varied considerably from one case to the next.
Since that case, the Sentencing Act, which came into force on 1 July 1996, now requires the Courts to have regard to "whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so" (s5(2)(j)). The statutory requirement does not differentiate between pleas which are indicative of genuine remorse and contrition, resipiscence (as to which see R v Jabaltjari, supra, at p 14), those which save complainants from the ordeal of having to give evidence and those which merely avoid the expense and trouble of a trial. Thereafter it has become accepted that it is relevant to take into account in the defendant's favour a plea - even a late plea - notwithstanding that the plea itself exhibits nothing more than the saving of cost and expense to the state, because "provisions such as s5(2)(j) are statutory statements that a plea of guilty is a mitigatory factor intended to act as an inducement to an offender to enter a plea of guilty in return for a lesser penalty than otherwise might have been expected to have been passed": Staats v R (1998) 123 NTR 16 at 28 per Angel J; see also Martin CJ at 23. In Siganto v The Queen (1998) 105 A Crim R 184 at 189-190 Gleeson CJ, Gummow, Hayne and Callinan JJ said:
...a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary according to the circumstances of the case. It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence.
It was submitted that the circumstances of the plea in this case warranted a substantial discount, a proposition accepted by the learned sentencing judge, that the head sentence of six years for the unlawful entry indicated that the learned sentencing judge must have had in mind a head sentence of at least eight years but for the plea, and that such a head sentence is manifestly excessive in the circumstances of this case. One of the difficulties with this submission is that it is not known precisely what reduction was given and it was submitted that this Court ought now to encourage sentencers to quantify the extent of the mitigation given consequent upon a plea. Mr Coates, on behalf of the appellant, accepted that there were difficulties in laying down any hard and fast rules about the extent of the discount to be given, but that if sentencers did provide this information it would demonstrate to defendants that the value of their plea had been taken into account, and enable the legal profession more confidently to advise defendants on the value of an early plea, thus encouraging defendants who intended to plead guilty to do so sooner rather than later. It would also assist in educating the public as to the sentencing process and enable appellate courts more closely to scrutinize sentencing.

In our opinion, an early plea has significant value going beyond the demonstration of remorse; it promotes the speedy disposition of justice and avoids the waste of valuable court time and other resources that is inherent in a late plea. Counsel for the Director of Public Prosecutions, Ms Blockland, supported Mr Coates' submission and submitted that it would not be inconsistent with the general approach to sentencing practice in this Territory, which permits a two-staged approach to sentencing; R v Ireland (1987) 49 NTR 10, at 22-24; R v Jabaltjari (1989) 64 NTR 1 at 20; R v Mulholland (1991) l NTLR 1. In some other jurisdictions it is now accepted that it is desirable for sentencers to reveal the extent of the discount given: see Corrigan (1993) 70 A Crim R 53 at 54; R v Harris & Simmonds (1992) 59 SASR 300 at 302. We note also that it is supported by the Standing Committee of Attorneys General Working Group on Criminal Trial Procedure (24 September 1999). This approach has been rejected in other jurisdictions for reasons of the kind discussed in Pavlic v The Queen (1995) 5 Tas R 186, esp. at p 191 and p 193; but see the different views expressed by Slicer J at pp 203-206, where the authorities from New South Wales and Victoria are also discussed.
In our opinion it is desirable that a sentencing court should indicate the extent to which, and the manner in which, a plea of guilty has been given any weight as a mitigating factor, but we do not consider that it is possible to lay down any tariff. The weight to be given to the plea will vary according to the circumstances.
Often, as here, the assistance given to the law enforcement authorities in investigating the offence may diminish the value of the plea given the strength of the prosecution case arising from that assistance. The combination of those two factors, however, allows for greater mitigation than would a plea without that cooperation. Public expense occurs not only in the courts, but also in the investigatory process.
In addition, it may be appropriate in the circumstances, rather than reduce the head sentence, to give effect to the value of the plea by other means such as a partially suspended sentence or home detention order, or by the imposition of a fine, to mention only some of the obvious examples.
Pavlic (see above) applied to the High Court of Australia for special leave to appeal against sentence. In oral submissions his counsel sought to raise for determination competing judicial opinions regarding the “instinctive synthesis” and the “two-tier” approaches to sentencing. The transcript of argument (23 November 1995) does not make it clear whether the applicant also sought to raise the question of quantification of discount. In any event, the Court (Brennan CJ, Gaudron and Gummow JJ) refused the application saying:
“It would be inappropriate for appeal courts to place the sentencing discretion in a procedural straightjacket when the infinite variety of circumstances require evaluation in a variety of ways. Sentencing is not, and ought not to be seen, as an exact science. Once sentencing principles are established, the manner of their application must depend upon the nature of the case.”
We do not believe that by encouraging sentencers to quantify the discount allowed for a guilty plea we are placing the sentencing discretion in a procedural straightjacket.
In this case, notwithstanding that the learned sentencing judge said that a substantial discount was given, we consider that inadequate weight must have been given to the plea and we would allow the appeal on that ground as well.
We would grant leave to appeal.
In the circumstances of this case we are of the opinion that a sentence of three years would have been appropriate on Count 1 had it not been for the guilty plea, that sentence being arrived at having regard to the matters referred to in s 5(2) of the Sentencing Act and the general principles in s 5(1). The assistance to law enforcement authorities, plea of guilty and the stage in the proceedings at which the offender indicated an intention to so plead, allow for substantial benefit on that account and would result in a sentence of two years and three months. We would not disturb the sentence on Count 2 as it was a very serious example of assaults. In all the circumstances, and absent the assistance and the plea of guilty, it would have merited a sentence of the order of two years and eight months.
The physical assaults encompassed within Count 2 are elements not to be found in the elements of the crime shown in Count 1. This provides a sound basis for departing from the normal rule of concurrency (Sentencing Act, s 50): see Pearce v R (1998) 156 ALR 684 at 693 (especially par 40) and at p 694, (par 45 and par 49) and see also Gummow J at p 699 (par 69). The term of the sentence on Count 2 is to be served concurrently with the term of the sentence on Count 1 to the extent of one year. The effective term of imprisonment is three years and three months. We fix the period during which the appellant will not be eligible to be released on parole at 50% of that term. The imprisonment and non-parole period are ordered to have commenced on 8 June 1999.
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