R v Ely (No 2)
[2018] VSC 187
•24 April 2018 (First revision 27 April 2018)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0074
| THE QUEEN |
| v |
| KIRT MATTHEW ELY |
---
JUDGE: | EMERTON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 March 2018 |
DATE OF JUDGMENT: | 24 April 2018 (First revision 27 April 2018) |
CASE MAY BE CITED AS: | R v Ely (No 2) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 187 |
---
CRIMINAL LAW – Prisoner pleaded guilty to intentionally causing serious injury – Prisoner originally sentenced to one year and nine months’ imprisonment and two year Community Correction Order – Contravention of Community Correction Order – Prisoner re-sentenced – Sentencing Act 1991 ss 6AAA, 18, 73, 83AD and 83AS.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Susanna Locke | Office of Public Prosecutions |
| For the Accused | Ms Jo Swiney | McNamaras |
HER HONOUR:
Background
Kirt Ely, on 18 May 2016, you were convicted of intentionally causing serious injury to Michael Leder on 31 December 2014. You pleaded guilty to that offence. You were sentenced to a term of one year and nine months’ imprisonment, and ordered to serve a Community Correction Order (‘CCO’) for two years, commencing on the date of your release.[1]
[1]R v Ely [2016] VSC 254.
At the time of sentencing, I considered you to be a suitable candidate for the CCO and your prospects of rehabilitation to be good, having regard to such matters as your evident remorse, the availability of drug, alcohol and mental health treatment through the CCO program and the strong support offered by your partner, Lisa Ely.
Lisa Ely is the mother of your three children. At the time of sentencing, you and Ms Ely had been in a relationship for 13 years, but your relationship had experienced difficulties arising from your conduct towards her. You were living separately at the time of your offending, although Ms Ely was visiting you on the night in question. While you were in custody, Ms Ely moved to Geelong to be near you, and she offered you the prospect of stable housing and support in managing compliance with the CCO conditions upon your release.
Unfortunately, your relationship with Ms Ely broke down again not long after your release from custody, leaving you homeless and unsupported for a protracted period of time. You ceased to make any attempt to comply with the CCO in July 2017 and absconded.
A warrant was issued for your arrest on 25 July 2017 and, on 6 December 2017, the warrant was executed. You were bailed to appear in the Supreme Court at Melbourne on 12 December 2017. However, you failed to appear on that date and the Court issued a further warrant, which was executed on 21 January 2018. You were remanded in custody and have been in custody since that time.
Breach of CCO
On 29 March 2018, you pleaded guilty to a charge that, contrary to s 83AD(1) of the Sentencing Act 1991 (Vic), you, without reasonable excuse, failed to comply with the conditions of the CCO.
Your failure to comply with the CCO is constituted by:
(a) failing to perform unpaid community work as required on 24 October 2016, 21 November 2016 and 22 November 2016;
(b) failing to undergo treatment and rehabilitation as required on 10 October 2016; 12 October 2016, 27 October 2016, 12 January 2017, 9 March 2017 and 1 May 2017;
(c) failing to be supervised, monitored and managed as directed on 1 March 2017, 1 May 2017 and 11 May 2017.
On 27 July 2017, Geelong Community Correctional Services (‘Geelong CCS’) prepared a contravention report detailing your non-compliance with the CCO (‘contravention report’).
The contravention report states that your compliance with the conditions of the CCO was only sporadic prior to the loss of contact with the Geelong CCS and that you had made minimal gains in relation to your criminogenic needs. You failed to attend drug and alcohol treatment on six occasions, and failed to provide evidence that you were engaging in mental health treatment. You completed no community work hours. You relocated to Melbourne without advising the Geelong CCS. When you were made aware that a summons had been issued in relation to your non-compliance with the CCO, you made no further contact with the Geelong CCS.
The contravention report also records that on 15 March 2017, the Geelong CCS was contacted by the Department of Health and Human Services advising that there were concerns about violence in the relationship and Ms Ely was no longer residing at the family home. It was recognised that you would become homeless once Ms Ely gave up the house you had been living in but the Geelong CCS was unable to make contact with you to discuss your housing options despite sending registered post letters and making phone calls to you using your last known contact details. The last registered post letter was returned to the Geelong CCS undelivered on 17 May 2017.
However, the following day, on 18 May 2017, you attended the Dandenong Community Correctional Service and advised that you had moved to a house in Cranbourne, and had no phone or money after paying the rent. At this point in time, contravention proceedings had already been commenced and you were advised to expect a summons. You made no contact with the Geelong CCS to update your contact details and the summons remained unserved.
As I have already noted, a warrant was issued for your arrest on 25 July 2017, and it was executed some five months later. It appears that during at least part of this five month period you were living alone at a friend’s house somewhere outside of Shepparton while the friend was overseas. The house was in a remote location and you had no transport, as you do not hold a driver’s licence. You were apparently also in a poor state of mental health. You were hospitalised on at least one occasion for an incident involving self-harm.
That, in summary, is the history of your compliance with the CCO. It can only be described as poor. Your failure to comply was extensive and included, in particular, a long period during which you did not make any contact at all with the Geelong CCS.
I recognise that your circumstances became very difficult once your relationship with Ms Ely broke down and you became homeless. However, you did not seek the assistance of the Geelong CCS and instead effectively absconded.
Consequences
Plainly, aside from the need to sentence you for the breach of the CCO, I must consider whether the CCO should be cancelled, necessitating re-sentencing for the original offence of intentionally causing serious injury.
The history of your non-compliance with the CCO and your personal circumstances raise serious doubts about whether the CCO should be continued.
The Court requested and has received an Extended Pre-Sentence Assessment — Outcome Report dated 7 February 2018 (‘Assessment’). You are assessed as being at a high risk of reoffending. You have also been assessed as having high needs in the categories of ‘education/employment’, ‘alcohol/drug problem’ and ‘family/marital’. Your accommodation options are considered to be problematic. The Assessment notes an absence of familial contact and support, unstable accommodation options, an unstable relationship with Ms Ely, an absence of pro-social activities or community support services to assist you, a lack of any friendship base, a history of mental health issues resulting in problematic substance abuse and a lack of employment and transport options should you choose to reside in the remote location near Shepparton where you were previously living.
In summary, you have been assessed as a high risk recidivist offender who is yet to address their offending behaviour via an offence-specific program or meaningful drug and alcohol counselling.
According to the Assessment, as your criminal history consists of significant violence and because you have not participated in an offence-specific program either in prison or in the community, it is critical that you participate in a violence-specific program and a men’s behaviour change program to address your ongoing offending behaviour.
The Assessment concludes:
This service finds Mr Ely an unsuitable candidate for a Community Corrections [sic] Order at this time based on the responsivity issues described in the body of the report. The paramount concern is the most current residential address that Mr Ely has supplied. Concerns are held for the safety of the victim [Ms Ely] and any children that may reside at this address. Equally, the alternate address provided is at a remote location and Mr Ely by his own admission informs that he would be unable to meet the order conditions due to lack of available transport.
This service considers an alternate sentencing option more suitable. For example, a period of parole would provide the structure, monitoring and supervision that would best meet the needs of Mr Ely and the general community.
In my previous sentencing remarks, I referred to a psychiatric report by Dr Danny Sullivan filed 27 April 2016 that was tendered on your plea of guilty to intentionally causing serious injury. You have a long history of mental illness, including a history of self-harm, which has resulted in hospitalisation on a number of occasions. You have had at least one further admission to hospital with suicidal ideation since that time. You also have a long history of alcoholism and you reported to Dr Sullivan using cannabis, cocaine, LSD, ecstasy, GBH and of abusing prescription medication. Dr Sullivan diagnosed poly-substance abuse and dependence in relation to cannabis and alcohol and a history of past amphetamine use. He also made a provisional diagnosis of recurrent depressive disorder and a mixed personality disorder with borderline (emotionally unstable) antisocial and narcissistic traits.
Given your failure to undertake mental health assessment and treatment during the period of the CCO, your mental health is unlikely to have improved since Dr Sullivan’s report. Your recent hospitalisations support this conclusion. Your counsel told the Court that you are ‘still at that acute point’ where you are ending up in hospital emergency departments after being found with suicidal ideations and that you behave aggressively while you are there. Added to this is the fact that you will effectively be homeless when released from custody. The combination of mental illness and homelessness is a common but extremely debilitating one.
It was submitted on your behalf that you still have the support of Ms Ely and that the two of you have plans to make a ‘clean start’ and move to Queensland or Tasmania, where you have family. This means that you will have family support if your mental health is such that you should not be with your children. You will have somewhere to go.
This is of limited assistance to the Court in deciding whether the CCO should be cancelled. There was no evidence about who these family members are and how they are prepared to assist, if at all. There is also the question of whether it is possible to serve a Community Correction Order in another State or Territory. The Court was given no assistance on this question. I have concluded that, at best, the prospect of a move to be closer to family members interstate might assist your rehabilitation in the longer term. I could not be persuaded that it would assist you to comply with the CCO.
I accept that there are reasons why it became very difficult for you to comply with the CCO. The breakdown of your relationship with Ms Ely meant that you ceased to have any stability in your life and you were homeless for a considerable period of time between the commencement of the CCO in October 2016 and your arrest in December 2017. You had a number of hospitalisations arising from your mental state. I accept that your non-compliance with the CCO conditions did not involve you ‘thumbing your nose’ at the orders of the Court but was a product of the general disorder in your life. As your counsel submitted, the CCO required a level of proactivity and responsibility that was simply beyond you given your psychological fragility.
Having regard to the extent of your non-compliance with the conditions of the CCO, the fact that your criminogenic and mental health needs have not been addressed since you were sentenced and that your conduct towards your family has required protective intervention, and what I consider to be your poor prospects of complying with the CCO conditions in the future, I have come to the conclusion that the CCO must be cancelled. I am not persuaded that your pledge to redouble your efforts if placed on another corrections order will make any difference to your ability to comply with the CCO.
The cancellation of the CCO and re-sentencing involves setting aside the whole of the sentence imposed, including the term of imprisonment previously imposed. You must be re-sentenced on the original charge of intentionally causing serious injury to Mr Leder as if you had just been found guilty of this offence.
Re-sentencing
I turn then to re-sentence you on the original offence of intentionally causing serious injury, to which you pleaded guilty at an early point in time.
The offence of intentionally causing serious injury carries a maximum penalty of 20 years’ imprisonment.
In re-sentencing you, I must consider the objective nature and gravity of your offending and your moral culpability.
The details of the original offending are set out in my 2016 sentencing remarks. I do not propose to repeat these details other than to observe that, while you inflicted serious injuries on the victim, he behaved violently towards you and initiated the conduct that resulted in the final violent altercation. Your offending was in the low to mid-range of seriousness for the offence of intentionally causing serious injury. Your moral culpability is not as high as in many other cases of offending of this kind.
The history of your previous offending is also set out in my 2016 sentencing remarks. You have a number of convictions for assault, indicating a pattern of behaviour often involving the use of drugs or alcohol and a loss of control on your part. This gives rise to a need for specific deterrence. However, this need is moderated by the fact your conduct was, at least in part, attributable to your poor mental health and by your evident remorse for your actions.
At the time of sentencing in 2016, I accepted that you were genuinely remorseful for your actions. Your counsel submitted that in addition to your historical mental health problems, you continue to struggle with the guilt that you have in relation to Mr Leder’s death. I accept that you were and continue to be remorseful for your offending.
While I accept that you continue to be remorseful for your actions, your prospects of rehabilitation require reconsideration.
In my 2016 sentencing remarks, I stated that I was satisfied that you had good prospects of rehabilitation. I was persuaded that your own determination and the good support you enjoyed from Ms Ely gave you a good chance of complying with the conditions in the CCO and that compliance with those conditions gave you good prospects of rehabilitation. That has proved not to be the case. Ms Ely was not able to manage your compliance with the CCO to ensure that you received the treatment you require. The time spent on the CCO did not assist your rehabilitation. The issues that cause you to be violent towards family members and, potentially, towards others, continue to be in play.
Despite your non-compliance with the CCO, I retain some confidence in your prospects of rehabilitation, providing that you receive appropriate supervision and treatment for your mental illness. As your counsel submitted, your problems with the law seem to derive principally from your poor mental health. You did not reoffend while on the CCO. You made such arrangements as you could to find accommodation and stay out of trouble. You suffered a number of episodes of severe mental distress requiring hospitalisation. Your failure to answer bail in December 2016 was apparently the result of such an episode.
Your poor mental health reduces the need for punishment and makes you a less suitable vehicle for general deterrence. Nonetheless, punishment and general deterrence remain relevant sentencing considerations. You have failed to satisfy the condition of the CCO directed at punishment in the form of unpaid community work. While you have been punished to some extent for your offending by the time already spent in custody, some further punishment is required.
Your counsel on the plea referred to the chronic back pain, diverticulitis, irritable bowel syndrome and depression from which you suffer, and submitted that these ailments would make imprisonment particularly burdensome for you. I accept that submission. I also take into account the long period of time that has elapsed since your offending and, indeed, since the contravention of the CCO, during which time you have had to cope with the uncertainty as to the final disposition of this matter and the distress the protracted process must have caused you.
Balancing these considerations and your plea of guilty, which has had utilitarian value as well as reflecting your remorse, I sentence you, in respect of the offence of intentionally causing serious injury to Michael Leder on 31 December 2014, to a term of imprisonment of three years and six months, with a non-parole period of two years and six months.
I have fixed a shorter than usual non-parole period because I consider that your prospects of rehabilitation will be improved by undergoing an extended period of intensive supervision and support in the community.
I declare that the period of pre-sentence detention covering all of your time in custody for the original offending and later contravention of the CCO reckoned as having been served is 733 days up to but not including today, and direct that this declaration and the period be entered into the records of the Court.
I further declare pursuant to s 6AAA of the Sentencing Act that, but for your plea of guilty, I would have sentenced you to a term of imprisonment of four years with a non-parole period of three years.
Failing to comply with a CCO carries a maximum penalty of three months’ imprisonment. On the charge of failing to comply with the CCO, pursuant to s 73 of the Sentencing Act, you are convicted and discharged.
0