R v Kelly - [2010] NSWCCA 259

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: Regina v Kelly [2010] NSWCCA 259

HEARING DATE(S): 14/10/10

JUDGMENT DATE:
9 December 2010

JUDGMENT OF: McClellan CJatCL at 1; Kirby J at 2; Hoeben J at 103

DECISION: 1. Appeal allowed.
2. The sentences imposed on 7 May 2010 are quashed.
3. In lieu thereof, the respondent is sentenced as follows:
In respect of Count 5, the respondent is sentenced to a term of imprisonment with a non parole period of 3 years 6 months, to date from 1 March 2009 and to expire on 31 August 2012, with an additional term of 2 years to expire on 30 August 2014.
In respect of Count 2, the respondent is sentenced to a term of imprisonment with a non parole period of 3 years, to date from 1 September 2009 and to expire on 31 August 2012, with an additional term of 1 year to expire on 30 August 2013.
In respect of Count 3, taking account of the matter on the Form 1, the respondent is sentenced to a term of imprisonment with a non parole period of 3 years, to date from 1 September 2009 and to expire on 31 August 2012, with an additional term of 1 year to expire on 30 August 2013.
In respect of Count 4, taking account of the matter on the Form 1, the respondent is sentenced to a term of imprisonment with a non parole period of 2 years 9 months, to date from 1 March 2010 and to expire on 30 November 2012, with an additional term of 1 year to expire on 30 November 2013.
In respect of Count 1, the respondent is sentenced to a term of imprisonment with a non parole period of 3 years 6 months, to date from 1 September 2010 and to expire on 28 February 2014, with an additional term of 2 years 6 months to expire on 31 August 2016. The respondent is to be eligible for release on parole on 28 February 2014.

CATCHWORDS: CRIMINAL LAW - five count of robbery whilst armed with an offensive weapon - Form 1 matters - Crown appeal against sentence on the basis of error and manifest inadequacy - global approach - failure to assess objective gravity each offence - aggravating circumstances not identified - Henry guidelines - accumulation - mental condition - sentences manifestly inadequate - re-sentence - youth.

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Mulato v R [2006] NSWCCA 282
R v Cage [2006] NSWCCA 304
R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740
Attorney General's Application No 1 of 2002 [2002] NSWCCA 518; 137 A Crim R 180
R v Grube [2005] NSWCCA 140
Eedens v R [2009] NSWCCA 254
Georgopolous v R [2010] NSWCCA 246
R v Hemsley [2004] NSWCCA 228
R v Engert (1995) 84 A Crim R 67
R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
R v Bojan [2003] NSWCCA 45
R v Walker [2004] NSWCCA 230

PARTIES: Regina (App/Crown)
Jerrymee Maine Kelly (Resp)

FILE NUMBER(S): CCA 2009/143206

COUNSEL: J Pickering (App/Crown)
B Rigg (Resp)

SOLICITORS: S Kavanagh - DPP (App/Crown)
Aboriginal Legal Service (Resp)

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Ashford DCJ

LOWER COURT DATE OF DECISION: 7/5/10

2009/143206

McCLELLAN CJ at CL
KIRBY J
HOEBEN J
Thursday 9 December 2010

REGINA v Jerrymee Maine KELLY

Judgment

1 McCLELLAN CJ at CL: I agree with Kirby J.

This is an appeal against sentence by the Crown (s 5D Criminal Appeal Act 1912). On 12 January 2009, Jerrymee Maine Kelly (“the respondent”) was charged with a number of offences committed in November 2008 within the space of a week. The offences may be summarised as follows (noting that, in respect of Counts 3 and 4, certain offences were placed on a Form 1):

Count 1:

11 November 2008

Crimes Act

Count 2:

11 November 2008

Count 3:

11 November 2008

Form 1:

11 November 2008

Count 4:

14 November 2008

Form 1:

13 and 14 November 2008

Count 5:

17 November 2008

3 On 25 November 2009, in the Newcastle Local Court, Mr Kelly pleaded guilty to each offence. On 7 May 2010 he was sentenced by Ashford DCJ, sitting in Newcastle, as follows:

Count 1:

Count 2:

Count 3:

Count 4:

Count 5:

4 The total sentence imposed was imprisonment for 5 years and 6 months (2.1.2010 to 1.7.2015) with a non parole period of 3 years and 6 months (2.1.2010 to 1.7.2013).

The Notice of Appeal.

5 A Notice of Appeal was filed by the Crown on 18 May 2010. The grounds of appeal were as follows:

Ground 1:

Ground 2:

Ground 3:

Ground 4:

Ground 5:

Ground 6:

Ground 7:

6 Ms Belinda Rigg, counsel for Mr Kelly, conceded error in respect of Ground 2 (that her Honour failed to assess the objective gravity of each offence). She further conceded that, at least in respect of Count 1, the consequence of that error was that the sentence imposed was manifestly inadequate (RS [1]). She nonetheless urged the Court, in the exercise of its discretion, not to intervene. On her submission it was plain, from the medical evidence since obtained from Justice Health, that the offender suffered from psychiatric problems far more profound than counsel for either party or her Honour appreciated.

7 Alternatively, if the Court were minded to intervene, it was submitted that the sentences imposed should be restructured to increase the parole period, leaving unaltered or substantially unaltered, the non parole period fixed by her Honour (RS [2]).

8 Although error has been conceded, the grounds of appeal provide a useful context for a consideration of the issues that arise in respect of the Court’s intervention and the possible need to resentence. Before considering the complaints made by the Crown, I should first set out the circumstances in which each offence was committed, as well as the respondent’s subjective case.

The offences.

9 The matter proceeded by way of an Agreed Statement of Facts. Mr Kelly did not give evidence on sentence. However, one of the documents tendered by counsel for Mr Kelly was a report of Dr Westmore, psychiatrist, who saw Mr Kelly in April 2010. He told Dr Westmore that he had little or no recollection of having committed the offences. At the time of the offences, he was 20 years old.

10 The robbery in Count 1 arose out of a home invasion. At 5.00 pm on 11 November 2008, Mr Kelly and two companions aged 16 years and 14 years knocked on the front door of a suburban home at North Lambton, near Newcastle. A woman answered the door. Mr Kelly was armed with a serrated edge knife. One of his companions had a screwdriver. Together they forced their way into the woman’s home.

11 The woman fled to the bedroom where her husband was asleep. She jumped onto the bed. Mr Kelly pursued her, holding a knife close to her throat. He demanded the car keys. His companion demanded her wallet and that of her husband.

12 The car keys and the occupants’ wallets were in the loungeroom of their home. The intruders demanded that they be shown where they were. The husband had been in bed naked. He got up and went with his wife to the lounge room. He identified the location of the keys and the wallets. The intruders removed a credit card, his license and a money clip, as well as mobile phones belonging to each occupant.

13 Mr Kelly then directed his companions to tie up the victims, including the husband who was still naked. The occupants asked that they simply leave and not tie them up. However, an extension cord was used to tie their hands and feet.

14 The three then left, using the victims’ four wheel drive car to escape. The victims managed to free themselves and within a short time called the police. Ultimately the DNA of Mr Kelly was found on the cord that had been used to tie up the victims.

15 The woman gave a description of each offender to the police. Each appeared to be aboriginal. The eldest, Mr Kelly, smelt heavily of alcohol and appeared to be intoxicated. He gave directions to the two younger men. Their faces were not covered.

16 The female victim’s statement included an account of the effect upon her. Not only had they stolen her property and that of her husband, but they had stolen her “sense of security”. She now lived in a permanent state of fear.

17 Count 2 concerned a further robbery committed within a matter of hours. Mr Kelly and one companion entered a Caltex service station at Bulahdelah. Both were wearing hooded jackets and carrying knives. Mr Kelly approached the service station attendant. He grabbed him by the tie, and at the same time held a knife to his throat. He demanded access to the safe. The attendant walked to the safe, with the knife held at his throat. It could not be opened because of a time-delay lock. The attendant was then made to open the till and directed to place its contents in a bag.

18 Meanwhile, the co-offender grabbed the hair of a female employee and placed his knife at the back of her head. She was made to walk to the restaurant attached to the service station and open its till. However, the till was empty. Mr Kelly then asked her: “Where’s your bag?”. She explained that their belongings were kept in a separate room. She was then made to walk to that room, whereupon she handed the handbag to the offenders. Her money was removed.

19 Mr Kelly then turned his attention to the male attendant. They walked to a flat at the rear of the service station, where another till was emptied. A total of $1,100 in cash was stolen.

20 Count 3 concerned an opportunistic robbery committed within moments of leaving the service station, having committed the offence in Count 2. As they left, they confronted a male standing alongside his car, filling it with petrol. His female companion was sitting in the passenger’s seat of the vehicle. Mr Kelly approached the male, pointing the knife at him, demanding that he empty the money from his wallet into a plastic bag that he was holding. The victim, as it happened, had just changed travellers’ cheques. He was carrying more than $1,000.

21 Meanwhile, the co-offender made the same demand upon the female passenger. She was forced to hand over her purse. The offenders then escaped, using the vehicle stolen from the home invaded earlier that evening. At 9.50 pm, the vehicle was recovered at Raymond Terrace, having been burnt out. The burning of the vehicle was the offence on the Form 1 to be taken into account when sentencing on Count 3.

22 The victims in respect of the robbery in Count 3 were both doctors. Both were used to dealing with trauma. Yet each felt terror when confronted by the respondent and his companion. The female victim became depressed for a number of months and tended to avoid public places.

23 Count 4 involved a further robbery at a service station. It occurred within 48 hours or so of the offences already described. At 1.30 am on 14 November 2008, Mr Kelly and a co-offender threw a rock at the glass front door of a BP service station at New Lambton. An employee inside the service station immediately pressed the hold-up alarm. The offenders then entered the shop, each wearing a hooded jacket. Mr Kelly brandished a knife saying: “Open the door or I’ll jump the counter”.

24 The attendant opened the door. The respondent directed him to fill a plastic bag with cigarettes. As he was doing so, he said: “Where’s the safe? Open it.”

25 The attendant did so as a knife was held at his throat. Mr Kelly directed his co-offender to remove the money from the safe. He also demanded to know where there was more money. Having been told that the only money was either in the till or the safe, the offenders left.

26 A victim provided an impact statement in which he said that, although he was not physically injured, he was frightened that unless he were to comply with the demands made upon him, he may be stabbed. In total almost $2,000 in cash was taken, together with gift vouchers and cigarettes valued at over $350.

27 The police arrived at the service station within minutes of the robbery. Soon after they received a report that two males, matching the description of the two offenders, were driving from the scene in a white Ford Laser sedan. A police pursuit began, but was unsuccessful. The vehicle had been stolen the day before. The theft and use of that vehicle was the matter on the Form 1 in connection with Count 4.

28 The final count (Count 5) concerned a robbery at 8.45 am on 17 November 2008. Mr Kelly and his co-offender entered the Mayfield Sport and Recreation Club. Again, each was wearing a hooded jumper. Mr Kelly also had a knife. His companion was armed with a tree branch. There were patrons within the club.

29 Mr Kelly, addressing the bar attendant, told him to open the till. The attendant refused saying: “Fuck off”. Mr Kelly then jumped the counter and grabbed the bar attendant, placing a knife at his throat. He said this: “You don’t want to fuck with me”.

30 With the knife still held against the attendant’s throat, he demanded that he open the till and place its contents in a bag. The co-offender said: “Get him moving, they’re calling the cops.”

31 Alongside the till there was a wooden box that held the float. Whilst the offender held the knife against the throat of the bar attendant, he also emptied the contents of the float into the bag. Two other bags of money, the takings of the previous night, were stolen and the offenders ran from the club.

32 The police were called and located the broken tree branch in the carpark. The bar attendant said that he felt sick and frightened throughout. He thought he was going to die. A total of $13,439 was stolen.

33 Let me move from the offences to the subjective case of the offender.

The subjective case.

34 Mr Kelly was born in April 1988. The only material relating to his background, tendered on sentence, was a report of 19 April 2010 from Dr Westmore. According to the history given to Dr Westmore, the respondent was the second of six children of aboriginal descent. His parents separated when he was 15 years old. He said their separation came about “because Dad hit me”. When referring to his father, he said: “He drinks”. When he was not in custody, the respondent was raised predominantly by a cousin.

35 Mr Kelly began drinking alcohol at the age of 10 years. He told Dr Westmore that he drank daily in a “heavy, regular fashion” (Report p 3). He quickly turned to drugs. At the age of 11 or 12, he began smoking cannabis. By age 14, he was using amphetamines, ecstasy and heroin. Unsurprisingly, his education was disrupted. He was expelled from many schools. He was only educated to Year 7. As a result he is illiterate.

36 From an early age, whether because of alcohol or drugs, or for some other reason, Mr Kelly experienced psychiatric symptoms. Dr Westmore took the following history: (Report p 2)

“He told me that he had been diagnosed with ‘schizophrenia and paranoia’. He thought that diagnosis had been made when he was in a juvenile justice facility. I asked him what symptoms he had and he said ‘Because I was hearing voices’. He said the voices were both male and female and that they were external. He said he was 10 or 11 at the time this particular diagnosis was made. He said he had also received messages from the television and radio. He was treated with antipsychotic medications, including Seroquel and Risperdal. ...

I asked him had he kept taking the medication on his release from the juvenile justice facility and he said ‘Sometimes’. I enquired had he been admitted to psychiatric hospitals and he said yes, John Hunter Hospital, Wyong and James Fletcher. He thought the last admission occurred in 2008. I asked him what symptoms he had at that time and he said ‘The same thing’.”

37 Mr Kelly described himself to Dr Westmore in these terms: (Report p 3)

“... He said he was unhappy and he stated ‘I was always wild at people, always drinking, smoking. I always hung around the older boys when I was younger, followed in their footsteps’.”

38 With that background, it is also unsurprising that Mr Kelly quickly accumulated a significant criminal history. He gave a history to Dr Westmore of serious misconduct at the age of about ten years, although it was not recorded in his criminal record (cf RS [6]). Between 2001 and 2003, he was repeatedly brought before the Children’s Court for offences of dishonesty, including stealing a motor vehicle. Control orders were made. In 2004 he was dealt with for a number of offences, including robbery when armed with an offensive weapon. Again, a control order was made for 2 years with a non parole period of 18 months. On appeal, the non parole period was adjusted to 12 months.

39 Between 2004 and 2007, Mr Kelly was dealt with by the Children’s Court for a number of offences, where various penalties were imposed, including a fine, a bond, and further control orders. During the currency of one of these orders, it was breached and revoked. He returned to custody on 12 July 2006.

40 On 13 June 2007, Mr Kelly was sentenced as an adult for robbery and robbery related offences. The sentences imposed were all concurrent. In respect of the following offences, a term of 4 years imprisonment was fixed (15.3.06 to 14.3.10), with a non parole period of 2 years (ending 14.3.08):

robbery armed with an offensive weapon (2 counts)

assault with intent to rob with an offensive weapon

robbery in company (6 counts)

robbery in company (1 count)

41 In respect of a further offence of robbery in company, Mr Kelly was sentenced at the same time to 4½ years imprisonment, comprising a non parole period of 2½ years (15.3.06 to 14.9.08), with an additional term of 2 years (14.9.08 to 13.9.10).

42 Mr Kelly was duly released on parole in September 2008. Within the space of two months, and whilst subject to the obligations of parole, he committed the offences which are the subject of this appeal.

43 Mr Kelly pleaded guilty in the Local Court. It was common ground that he was entitled to the full discount (25%).

44 There were two other aspects of Mr Kelly’s subjective case, arising from the report of Dr Westmore, that are best dealt with in the context of the complaints made by the Crown on this appeal. The first concerns a finding of remorse by her Honour, based at least in part, upon a statement by Mr Kelly to Dr Westmore. The Crown complains (Ground 1) that there was no basis for that finding. Secondly, his psychiatric history (as recorded by Dr Westmore) is relevant to the complaint by the Crown in Ground 4. In an appropriate case, a psychiatric history may be relevant to the objective gravity of the offence and may, in addition (or alternatively), be an important part of his subjective case, relevant to the punishment to be imposed. Here the Crown asserts (Ground 4) that her Honour wrongly took into account the respondent’s mental condition when determining the objective gravity of the offence. In support of the assertion that the sentence was manifestly inadequate, the Crown alleges that her Honour gave too much weight to the material set out in Dr Westmore’s report (CS [11]).

45 Let me move to the grounds of appeal, beginning with a number of grounds that may conveniently be dealt with together.

Ground 2: Failure to assess the objective seriousness of each charge.

Ground 3: Error in finding Counts 1, 2 and 5 fell below the midrange of objective seriousness.

Ground 5: Failure to find as an aggravating feature that the offences committed in company.

Ground 6: Failure to find, as an aggravating feature of Count 1, that the offence occurred in the home of the victim.

46 The same offence, robbery with an offensive weapon, was charged in each of the five counts, although two charges (Counts 3 and 4) included offences on a Form 1. The parties, in submissions to her Honour, dealt with the matter globally, attempting to describe the level of criminality emerging from the offences taken together. Adopting the now familiar terminology, used in the context of offences where there is a standard non parole period (Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act 1999), counsel for Mr Kelly made the following broad brush submission to her Honour: (T 13)

“... For those reasons, your Honour, I say that, your Honour, would probably either be below the mid range. But I certainly submit, your Honour, it’s not at the bottom of the range and I would not make that submission.”

47 That was a mistake. An assessment was required in respect of the criminality of each offence, as the respondent concedes. The offences were very different from each other.

48 Unfortunately her Honour adopted the same global approach. In her remarks on sentence, she said this: (ROS 11)

“In looking to the objective seriousness of these offences, the Crown submits this to be above mid range. The defence submits it to fall below the mid range, taking into account the offender’s mental condition and other factors involved.

Having considered all the matters put to me, I assess the objective seriousness of the offences to be around the mid range or slightly below, considering his undoubted mental health problems. ...”

49 Her Honour identified aggravating features, again in global terms. She said: (ROS 7)

“In relation to aggravating factors, it is clear the offender has a record of previous convictions. He was on parole for similar offences at the time and he is presently serving a gaol sentence, his parole having been revoked for breaches. It is also an aggravating factor that some of the victims were particularly vulnerable, in particular those involved in the service station robbery. The offence was part of a planned or organised criminal activity. There has been a submission made in that respect that there was little planning, but it seems to me that there was a degree of planning involved which, to my mind, is an aggravating factor.”

50 What was required was an examination of each offence by reference to the guideline judgment in respect of robbery (R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346), rather than by reference to “a mid range offence”. Spigelman CJ in Henry identified the recurring features of a typical robbery, for the purposes of a guideline, in these words: (at 380)

“162 It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline:

(i) Young offender with no or little criminal history;

(ii) Weapon like a knife, capable of killing or inflicting serious injury;

(iii) Limited degree of planning;

(iv) Limited, if any, actual violence but a real threat thereof;

(v) Victim in a vulnerable position such as a shopkeeper or taxi driver;

(vi) Small amount taken;

51 The Chief Justice then said this: (at 380)

“163 Whilst it is possible to determine a starting point in a case of this kind, that is, a sentence of X years imprisonment, I do not believe that the Court should do so. Rather, I propose the Court should identify a narrow sentencing range within which this Court would expect sentences in such cases to fall.

164 There are two principal reasons why a sentencing range is appropriate for this offence:

(i) The seven characteristics identified above do not represent the full range of factors relevant to the sentencing exercise.

(ii) Many of the seven identified characteristics contain within themselves an inherent variability, for example, different kinds of knives or weapons in (ii); extent of ‘limited actual violence’ in (iv); degree of vulnerability in (v); amount in (vi).”

52 The Chief Justice identified the sentencing range for offences of that character. Sentences should generally fall between 4 and 5 years for the full term (at 380). That range assumed a 10% discount for a late plea (R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [161] ). Where, as here, there was an early plea, calling for a discount of 25%, the adjusted sentencing range is as follows:

5 years reduces to 3 years 9 months

4 years reduces to 3 years

Applying the usual statutory ratio (3:1) (s 44(2) Crimes (Sentencing Procedure) Act 1999), the non parole period in respect of such a range would be:
3 years 9 months with non parole period of 2 years 10 months

53 The Chief Justice added: (at 381)

“169 Aggravating and mitigating factors will justify a sentence below or above the range as this Court’s prior decisions indicate. The narrow range is a starting point.

170 In addition to factors which may arise in any case, for example, youth, offender’s criminal record, co-operation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail etc, a number of circumstances are particular to the offence of armed robbery. These include:

(i) nature of the weapon;

(ii) vulnerability of the victim;

(iii) position on a scale of impulsiveness/planning;

(iv) intensity of threat, or actual use, of force;

(v) number of offenders;

(vi) amount taken;

(vii) effect on victim(s).”

54 In sentencing the respondent, a number of issues therefore arose. First, the sentencing Judge was required to impose an appropriate sentence for each offence (Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610). A synthesis was required that reflected the circumstances of the individual offence (including the offender’s state of mind), and whether it was better or worse than Henry, with appropriate adjustments for his subjective case (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357). Secondly, since there were a number of counts, the question of totality had to be addressed. That gave rise to a number of issues. The offender was already in custody (from 23 November 2008), his parole having been revoked. That sentence would not expire until 27 September 2010. Her Honour was therefore obliged to select an appropriate commencement date for the sentences she was about to impose. There being five counts, issues of concurrence and accumulation arose, the essential question being that identified by Howie J in Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41, in these terms: (at 47)

can the sentence for one offence comprehend and reflect the criminality for the other offence?

55 Here, her Honour imposed fixed terms in all but the last count (cf Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616). That approach, whilst appropriate in less serious offences was, in my view, inappropriate in the context of serious offences such as robbery. It is an approach that produces a sentence which appears quite inadequate. It also distorts the statistics maintained for the guidance of the profession and judges. Further, the consequence of treating all offences globally, rather than individually, was that each sentence was the same or almost the same (2 years on Counts 1, 2 and 4; 2 years 3 months on Count 3). On Count 5 alone, a non parole period was fixed (2½ years) with an additional term (2 years).

56 Turning, then, to the individual offences, the circumstances of each were different as counsel for Mr Kelly acknowledged (RS [38]). The issue was whether the error by her Honour, in approaching the five counts globally, caused her to underestimate the seriousness of the individual counts. It was conceded that it had done so in the case of Count 1 (RS [43]). However, it was said that her Honour’s determination in respect of the remaining counts was open and should not lightly be set aside (RS [47]-[52]; Mulato v R [2006] NSWCCA 282, per Spigelman CJ at [37] and Simpson J at [46]-[47]). The difficulty with that submission, is that the characterisation by her Honour, that the respondent wishes to defend, was by reference to “the mid range” offence, rather than the Henry guideline. Although her Honour did refer to Henry, again she did so globally, rather than examining each count (ROS [11]).

57 There is one further aspect to the respondent’s submissions which should be dealt with. Grounds 5 and 6 of the Crown appeal identified specific aggravating features, not included in the list provided by her Honour. Ground 5 concerned the fact that each offence was committed in company. Ground 6 was specific to Count 1, the home invasion. It was a matter of aggravation that the offence occurred within the victim’s home (s 21A(2)(eb) Crimes (Sentencing Procedure) Act). Counsel for the respondent resisted the suggestion that these omissions amounted to error. Her Honour’s recital of the facts demonstrated that she was well aware of each circumstance (RS [35]). Sentencing should not be a mechanical exercise where the Judge was obliged to tick a box (RS [36]).

58 In R v Cage [2006] NSWCCA 304, Latham J (Hunt AJA and Johnson J agreeing) said this: (at [17])

“17. A bare recitation of the facts constituting the offences and a reference to the ‘objective features of the offences’ does not satisfy the requirements of sentencing. ...”

R v Tadrosse

59 Turning to Count 1, and the seven features identified by the Chief Justice in a typical robbery, Mr Kelly, although a young offender, could not be described as ‘having little or no criminal history’ (Criteria (i)). He had a significant criminal history. Even in the context of his psychiatric history, which I will shortly describe, personal deterrence was an important consideration. Mr Kelly had a knife and came within Criteria (ii). The circumstances of the offence met the description in “limited degree of planning” (Criteria (iii)). The faces of the offenders were uncovered. The house was apparently selected because there was a car in the driveway. The fourth Criteria, “limited if any actual violence, but the real threat thereof”, was a matter of some controversy. The Crown contended that the occupants had been terrorised and the knife held against the throat of the female victim. Counsel for the respondent corrected that description by reference to the agreed facts, which stated that the offender “reached forward holding the knife close to the victim’s throat”. However the victims were tied up. Tthe circumstances go beyond “limited if any actual violence”, not because of the intensity of the threat (cf Henry [170] (supra [50])), but the tying up of the victims. Criteria (v), speaking of the vulnerability of the victims, identified a circumstance perhaps more appropriate in the context of the service station robberies (Counts 2, 3 and 4). Here the victims were unarmed, surprised and confronted by three individuals, two of whom were armed. They were certainly vulnerable. However, their vulnerability largely came about through the two matters of aggravation, not specifically identified, namely the fact that the offenders were in company (s 21A(2)(e)) and the fact that the offence was committed behind closed doors, in the victims’ home (s 21A(2)(eb)).

60 The sixth Criteria presupposed that a small amount was taken. Here the property stolen was significant. It included money, two mobile phones and also the motor vehicle parked in the driveway. Criteria (vii) dealt with the timing of the plea. Here it was not a late plea. The plea was entered at the first opportunity.

61 Applying the guidelines, one should then look at aggravating or mitigating features (Henry, supra [50]). Such features include the matters identified, that is the offences were committed in company and involved the invasion of the victims’ home. In addition Mr Kelly, at the time, enjoyed conditional liberty. He was on parole (s 21A(2)(j)). Tying up the victims added to the indignity and their terror. By any measure, objectively the crime in Count 1 was significantly worse than Henry, although it should be noted that I have yet to examine the offender’s state of mind (Ground 4).

62 It will be remembered that Count 2 concerned the robbery of the Caltex service station at Bulahdelah. I will deal only with those criteria in Henry where there was a departure from the typical case. As with Count 1, Mr Kelly’s criminal history was significantly worse. The planning involved in Count 2 was greater than Count 1, but still rudimentary. It came within the description “limited planning” in Criteria (iii). The Crown suggested there was actual violence. Mr Kelly grabbed the service station attendant by the tie, holding a knife to his throat. The actual violence was minimal, but again the intensity and sustained nature of the threat (as the victims were made to walk from point to point in search of more money) was far greater than that contemplated in Henry. The victims were vulnerable (Criteria (v)). The amount taken ($1,100) qualifies as a “small amount” (Criteria (vi)). Again, the plea was earlier and the comments made in the context of Count 1 apply.

63 As with Count 1, the fact that the offence was committed in company and whilst the respondent was on parole, were both significant aggravating features. Counsel for the respondent submitted that the circumstances were “no more serious than the type of offence contemplated by Henry, but at the higher end of it”. However, such a characterisation understates the seriousness of the offence, subject again to Mr Kelly’s mental state (infra [69]).

64 Count 3 was the opportunistic robbery immediately after Count 2. It will be remembered that money was taken from two doctors as their car was being filled with petrol. There was no planning (cf Criteria (iv)). The threat was short lived. A relatively small amount was taken. The same aggravating features as described in the context of Count 2 were present (in company and in breach of parole). The offence was acknowledged by the Crown as being far less serious.

65 However, Count 3 included an offence on a Form 1, that is setting fire to the vehicle that had been stolen earlier in the evening in the home invasion. It would have been more logical to include the Form 1 with Count 1. The question arises whether the offence should have been included on a Form 1 at all. The offence under s 203E(1), when prosecuted on indictment, carried a maximum penalty of 14 years imprisonment with a standard non parole period of 5 years. The use of a Form 1 reduced the punishment that could be imposed in respect of that offence, applying the principles in the guideline judgment (Attorney General’s Application No 1 of 2002 [2002] NSWCCA 518; 137 A Crim R 180), although taking account of an offence on a Form 1 can result in a substantial increase in the sentence otherwise appropriate (R v Grube [2005] NSWCCA 140). In Eedens v R [2009] NSWCCA 254, Howie J (Macfarlan JA and Hislop J agreeing) said this in respect of the inclusion of a standard non parole period offence on a Form 1: (at [19])

“19. ... The significance of the standard non-parole provisions loses its impact when the offence is placed on a Form 1. I am of the opinion that generally it is inappropriate to have a matter taken into account that carries a standard non-parole period. Of course, there may be situations where that procedure can be justified, for example where the offender is being sentenced for a number of offences similar to those placed on the Form 1.”

66 Here, it may be inferred that the car was deliberately destroyed to obliterate evidence (whether fingerprints or DNA) that may have connected the offenders with the crimes they had committed earlier that evening. It was a serious offence although, given the broad nature of offending comprehended by s 203E(1), still well below the mid range.

67 It will be remembered that Count 4 was the robbery of the service station at New Lambton in the early hours of 14 November 2008. The circumstances were similar to Count 2, except that the threat was less intense and the amount taken approximately the same ($2,000 cf $1,100 Count 2). The Crown acknowledged that it was a less serious offence (CS [61]). Leaving aside the mental state of the offender, the offence substantially conformed to the Henry guideline, apart from the aggravating features present in respect of all offences, that is committed in company and whilst on parole. In sentencing the offender, her Honour was obliged to take account of the Form 1, that is stealing a motor vehicle the evening before.

68 It was common ground that Count 5 (the robbery at the Mayfield Sport and Recreation Club) was more serious than Henry (CS [62]; RS [68]). The degree of violence was greater, although probably still within the description “limited, if any, violence but the real threat thereof” (Criteria (iv)). When the attendant refused to hand over the money, the respondent leapt the counter and held a knife to his throat. The two offenders were armed, one with a knife (in the case of Mr Kelly) and the other a tree branch (carried by his companion). The sum stolen was not small ($13,439). The same aggravating features (in company and on parole) were present. It was an aggravated form of the Henry offence, again subject to the mental state of the offender.

69 Let me turn, then, to the remaining issues and especially the mental state of Mr Kelly at the time of these offences.

Ground 1: Was there error in respect of remorse?

Ground 4: Was there error in taking into account the respondent’s mental condition?

70 Let me quickly deal with the issue of remorse. As mentioned, Mr Kelly had little or no recollection of the offences. Dr Westmore’s report included the following: (report p 4)

“I enquired was his offending behaviour wrong and he said ‘Yes, because I hurt people and I’m sorry for that too.’”

71 That statement and the plea, which included an acknowledgement of the agreed facts, were the only material before her Honour from which she could accept (as a matter of probability) that the respondent had expressed remorse. Was that enough? The Crown submitted that it was not. Counsel for Mr Kelly made the following submission in reply: (RS [13]-[14])

“13. ... Her Honour was entitled to take the view that to the extent that the respondent answered Dr Westmore’s questions he did so without giving a great deal of consideration to the effect of his answers. There is a dull literalness to his responses. ...

14. Simple in its terms as the demonstration was, it was capable in context of impressing a sentencing judge as genuine. ...”

72 Counsel for the respondent submitted that the expression of remorse was not undermined by the fact that he had no recollection of precisely what he had done. I accept it was open to her Honour to accept that Mr Kelly regretted his actions (cf Howie J in Georgopolous v R [2010] NSWCCA 246).

73 Let me move to the more important issue of Mr Kelly’s mental state. Dr Westmore, having taken a history, included the following comments concerning Mr Kelly’s mental state at the time of the offences: (report p 2/3)

“I asked him how his mental health had been at the time the current offending behaviour occurred and he said ‘Poor, I wasn’t taking the medication.’ He said he had been off medication for about a month. I asked him did he have symptoms and he said ‘Yes, I was hearing voices again.’ I asked him about the content of the voices and he said he ‘heard people, heard things’. He said those symptoms continued until he was placed into prison and he was put back onto medication.

Mr Kelly then said ‘I tried to neck myself when I was out, someone cut me down, that was just before I come in.’”

74 Dr Westmore then described the respondent’s position since incarceration: (report p 3)

“He (is) currently managed in the mental health unit in Silverwater, he has been there since around April 2009. He is currently treated with Zyprexa, which is an antipsychotic medication, Zoloft, an antidepressant, Lithium, a mood stabiliser and every fortnight he receives an injection which is likely to be an antipsychotic medication as well.

I asked him had his symptoms now resolved since he had been placed on treatment again and he said ‘Not really, I still hear voices. I (done) this (he demonstrated left arm lacerations) a couple of weeks ago.’”

75 His impression of Mr Kelly was recorded in these words: (report p 4)

“Mr Kelly presented as a young Aboriginal male. He was neat and tidy and pleasant and cooperative. Eye contact was reduced. He spoke spontaneously, but mainly in response to questions. The tone of his speech patterns was monotonous. His affect was flat and his mood state restricted and despondent. He describes a history of auditory perceptual disturbances, ideas of reference and having suffered ‘paranoid’ thoughts in the past. Some of those symptoms are said to be continuing. He was generally alert and attentive but he presented as being of compromised intelligence.”

76 Upon that basis, Dr Westmore diagnosed the following: (report p 5)

AXIS 1

Conduct disorder arising in adolescence

Alcohol abuse/?dependence

Substance abuse/?dependence

Psychotic illness

77 Dr Westmore also queried whether Mr Kelly had an evolving antisocial personality disorder. However, such a disorder could not be diagnosed because of his age.

78 Dr Westmore’s opinion on the future was in the following bleak terms: (report p 5/6)

“He cannot read or write and he has never held employment.

This is a most concerning case and Mr Kelly’s future looks extremely bleak at this time. If he is not to become a serial offender, then he will need extensive assistance, both in custody but more importantly, on his return to the community. This might be afforded him if there is an extended period of probation and parole with strict supervision and support requirements.

Most importantly, he needs to attend a drug and alcohol rehabilitation service and he needs to attend a community mental health service wherever he eventually resides. The clinical impression of Mr Kelly is that he is a young man who appears to be depressed in mood. There are pervasive feelings of hopelessness and helplessness about him. His life history, to put it simply, appears to be quite disastrous. I have serious concerns about his long term future, his risks of reoffending and his capacity to be rehabilitated unless he is provided with intense, extensive and long term treatment.”

79 Upon the basis of that material, her Honour moderated her assessment of the objective seriousness of the offence (ROS 11). The Crown asserted that there was no basis for doing so. It was not open to her Honour, according to the Crown, to find that Mr Kelly’s mental condition was causally related to his offending. The following submission was made: (CS [68])

“68 Dr Westmore did not suggest that there was any (causal) link between the respondent’s condition, whatever that may be, and the offending. The highest the evidence got on this point was a suggestion by the respondent that he was not taking his medication at the time of the offences.”

80 I disagree. Certainly Dr Westmore does not, in terms, make the link. Nonetheless, I believe that it is implicit in his report that there was such a link, if one accepted the history of Mr Kelly. That history included:

81 It was, I believe, open to her Honour to infer, as a matter of probability, that his deteriorating mental health had contributed to his offending behaviour. It is appropriate to find s 21A(3)(j) in mitigation, that the offender, by reason of his disability was not fully aware of his actions.

82 Let me move to the final ground of appeal.

Ground 7: That the sentences were manifestly inadequate.

83 The Crown submitted that the sentences individually were inadequate and, by reason of her Honour’s approach to accumulation and totality, the aggregate sentence inadequate. Specifically, insufficient weight had been given to the circumstance of aggravation, that the offences were committed whilst the offender was on parole. The Crown said this: (CS [88])

“88 Given that the respondent had only been on parole for 57 days for ten matters almost identical in nature, this should have been seen as a very significant aggravating factor attaching much weight, and yet, in the final analysis it does not appear to have had much impact on the final sentences. ...”

84 Each offence, according to the Crown, was worse than the typical robbery, the subject of the Henry guidelines. Some offences (Counts 1 and 5) were considerably worse.

85 The Crown also suggested that the sentences were inadequate, in part, because her Honour had “given too much weight to Dr Westmore’s report” (CS [115]). The history provided by Dr Westmore was incomplete. Caution should have been exercised in relying upon it. But, even accepting Dr Westmore’s conclusion, the protection of society was also important. The Crown added: (CS [118])

R v Engert

R v Monk

R v Champion

R v Wright

86 The respondent submitted that only one count (Count 1) was manifestly inadequate. The sentences in respect of the remaining counts were within the bounds of sound discretion. Attention was also drawn to the commencement date selected by her Honour. The relevant chronology was as follows:

14 Sept 2008 released to parole

87 That being the context, the following submission was made: (RS [78])

“78 Her Honour could not have commenced the sentences with which she was concerned any later than 7 May 2010 (the day she sentenced), but could have commenced them a lot earlier than she did. A different judge may have staggered the commencement dates of the sentences further apart, but commenced the sentences significantly earlier. The three month periods of accumulation are not able to be looked at in isolation from the very high degree of accumulation on the earlier sentence. These were essentially discretionary determinations by her Honour and it is submitted that it can not be said that it was not open to her Honour to approach the matter in the manner she did.”

88 Even accepting, as I do, that the respondent’s mental illness contributed to his behaviour, there can be no doubt that the sentences individually, and in their totality, were inadequate. There is a need for this Court to intervene and resentence.

Resentence.

89 An affidavit of Mr Benjamin Pierce of 12 October 2010 (the solicitor for the respondent), was relied upon in the event that the Court intervened to resentence Mr Kelly. Mr Pierce was given access to the most recent volumes of the medical records of Justice Health relating to Mr Kelly (Vols 7 and 8). Documents from those records were annexed to Mr Pierce’s affidavit. The records confirmed the history given by Mr Kelly to Dr Westmore. Indeed, according to the respondent, they demonstrated a far more profound and longstanding mental illness than was apparent to her Honour. Counsel for the responded added the following: (RS [81])

“81 ... The material shows graphically a very hard time for the respondent in custody because of his mental illness ...”

90 In R v Hemsley [2004] NSWCCA 228, Sperling J said this: (at [33]-[35])

Henry

Jiminez

Tsiaras

Lauritsen

Israil

Pearson

Pearce

Engert

Letteri

Israil

Pearson

Tsiaras

Jiminez

Israil

91 I accept that Mr Kelly’s mental illness is relevant in each of the three ways identified. Specifically, it should be said that the documentation does demonstrate that gaol is more difficult for Mr Kelly by reason of his mental illness, often requiring isolation.

92 However, as the Crown points out, the protection of society as well as specific deterrence, are also relevant. In R v Engert (1995) 84 A Crim R 67, Gleeson CJ said this: (at p 68)

"Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision."

93 The Chief Justice added: (at p 71)

" ... the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system."

94 Turning to the issue of concurrency and accumulation, reference has been made to the test identified by Howie J in Cahyadi v Regina (supra [54]). In R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66, Simpson J (Mason P agreeing), having referred to Pearce v The Queen (supra [54]), said this: (at [8])

“8 ... I take this to mean that, except perhaps in cases of multiple offences committed as part of a single, discrete episode of criminality, the sentence for an individual offence is to reflect the criminality involved in the offence untainted by reference to the other offences for which that offender is to be sentenced.”

95 Here, all offences occurred within less than a week. Counts 1, 2 and 3 (and the Form 1) were committed within a few hours on the one day (11.11.08). Nonetheless, each was a discrete episode of criminality, although Counts 2 and 3 are clearly very closely related. Some accumulation is necessary.

96 As to the commencement date, parole was apparently revoked because of a failure to report and live at the address required (T 3). In other words, it was not revoked by reason of the present charges. R v Bojan [2003] NSWCCA 45 and R v Walker [2004] NSWCCA 230 have each held that, when parole is revoked for reasons unrelated to the offences, time spent in custody as a consequence of the breach is not to be taken into account upon sentence for the later offences. However, where the parole status of the offender may be affected by the second series of offences, an issue arises whether those offences have caused a continuation of the revocation.

97 Here, both parties approached the matter before her Honour upon the basis that she had a discretion to back-date the sentence. She then selected 2 January 2010 as the commencement date. It has now become necessary to resentence. I believe an earlier commencement date is appropriate. Given the number and nature of the charges, it may be inferred that they ended any possibility of parole pending their determination. I believe it reasonable to back-date the sentence to 1 March 2009.

98 In resentencing the respondent, I am mindful of his relative youth and the need to avoid a crushing sentence, even though inevitably a significant sentence must be imposed. The requirements of totality (especially in the context of the previous sentence) has meant that the sentences imposed are concurrent to a greater degree than the facts may otherwise suggest is appropriate.

99 Her Honour found special circumstances. It is reasonable to do so again for the same reasons. Inevitably, the sentence adds to the sentence he was already serving, so there is an extended period in custody. Mr Kelly will certainly need an extensive period of supervision to deal with mental health issues, as well as his difficulties with alcohol and drugs. The non parole period on Count 1 has been adjusted by reason of special circumstances below that which would ordinarily be appropriate.

100 The total term of imprisonment in the orders proposed is 7½ years to date from 1 March 2009 and to expire on 31 August 2016, with an non parole period of 5 years to expire on 28 February 2014. The appellant will be eligible for release on parole on 28 February 2014.

101 One would hope that, during the period of his incarceration, some attempt will be made by gaol authorities to address his illiteracy. His rehabilitation is likely to be significantly enhanced were that done.

Orders.

102 The orders I propose are as follows:

1. Appeal allowed.

2. The sentences imposed on 7 May 2010 are quashed.

Count 5

Count 2

Count 3

Count 4

Count 1

I agree with Kirby J.

**********

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Citations

R v Kelly [2010] NSWCCA 259

Most Recent Citation

R v Harris [2011] NSWCCA 105

Cases Citing This Decision

5

Sullivan v The Queen [2016] NSWCCA 172

R v Gibbons [2013] NSWCCA 166

Isaako v The Queen [2012] NSWCCA 115

Cases Cited

20

Statutory Material Cited

3

R v Henry [1999] NSWCCA 111

Hall v The Queen; Barker v The Queen [2017] ACTCA 16

Morawski v State Rail Authority [2000] NSWCCA 309

CITATION:	Regina v Kelly [2010] NSWCCA 259
HEARING DATE(S):	14/10/10
JUDGMENT DATE:	9 December 2010
JUDGMENT OF:	McClellan CJatCL at 1; Kirby J at 2; Hoeben J at 103
DECISION:	1. Appeal allowed. 2. The sentences imposed on 7 May 2010 are quashed. 3. In lieu thereof, the respondent is sentenced as follows: In respect of Count 5, the respondent is sentenced to a term of imprisonment with a non parole period of 3 years 6 months, to date from 1 March 2009 and to expire on 31 August 2012, with an additional term of 2 years to expire on 30 August 2014. In respect of Count 2, the respondent is sentenced to a term of imprisonment with a non parole period of 3 years, to date from 1 September 2009 and to expire on 31 August 2012, with an additional term of 1 year to expire on 30 August 2013. In respect of Count 3, taking account of the matter on the Form 1, the respondent is sentenced to a term of imprisonment with a non parole period of 3 years, to date from 1 September 2009 and to expire on 31 August 2012, with an additional term of 1 year to expire on 30 August 2013. In respect of Count 4, taking account of the matter on the Form 1, the respondent is sentenced to a term of imprisonment with a non parole period of 2 years 9 months, to date from 1 March 2010 and to expire on 30 November 2012, with an additional term of 1 year to expire on 30 November 2013. In respect of Count 1, the respondent is sentenced to a term of imprisonment with a non parole period of 3 years 6 months, to date from 1 September 2010 and to expire on 28 February 2014, with an additional term of 2 years 6 months to expire on 31 August 2016. The respondent is to be eligible for release on parole on 28 February 2014.
CATCHWORDS:	CRIMINAL LAW - five count of robbery whilst armed with an offensive weapon - Form 1 matters - Crown appeal against sentence on the basis of error and manifest inadequacy - global approach - failure to assess objective gravity each offence - aggravating circumstances not identified - Henry guidelines - accumulation - mental condition - sentences manifestly inadequate - re-sentence - youth.
LEGISLATION CITED:	Criminal Appeal Act 1912 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Mulato v R [2006] NSWCCA 282 R v Cage [2006] NSWCCA 304 R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740 Attorney General's Application No 1 of 2002 [2002] NSWCCA 518; 137 A Crim R 180 R v Grube [2005] NSWCCA 140 Eedens v R [2009] NSWCCA 254 Georgopolous v R [2010] NSWCCA 246 R v Hemsley [2004] NSWCCA 228 R v Engert (1995) 84 A Crim R 67 R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 R v Bojan [2003] NSWCCA 45 R v Walker [2004] NSWCCA 230
PARTIES:	Regina (App/Crown) Jerrymee Maine Kelly (Resp)
FILE NUMBER(S):	CCA 2009/143206
COUNSEL:	J Pickering (App/Crown) B Rigg (Resp)
SOLICITORS:	S Kavanagh - DPP (App/Crown) Aboriginal Legal Service (Resp)
LOWER COURT JURISDICTION:	District Court
LOWER COURT JUDICIAL OFFICER:	Ashford DCJ
LOWER COURT DATE OF DECISION:	7/5/10