R v Kelly

[2002] NSWCCA 277

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:           Regina v Kelly [2002]  NSWCCA 277

FILE NUMBER(S):
60835/01

HEARING DATE(S):          27 June, 2002

JUDGMENT DATE:            27/06/2002

PARTIES:
Regina
Peter Kelly

JUDGMENT OF:   Smart AJ Blanch AJ    

LOWER COURT JURISDICTION:    District Court

LOWER COURT FILE NUMBER(S):              01/11/0924

LOWER COURT JUDICIAL OFFICER:          Freeman DCJ

COUNSEL:
L M B Lamprati (Crown)
A P Cook (appellant)

SOLICITORS:
S E O'Connor (Crown)
D J Humphreys (appellant)

CATCHWORDS:
Criminal law
parity of sentence
good character

LEGISLATION CITED:
Crimes Act, 1900, s112(2)

DECISION:
Leave to appeal granted.  Appeal allowed.  Sentence quashed.  Sentence imposed of three and a half years imprisonment head sentence to commence 14 July, 2001.  Specify non-parole period of twenty one months to commence 14 July, 2001 and to expire on 13 April, 2003.

JUDGMENT:

- 5 -

IN THE COURT OF
CRIMINAL APPEAL

60835/2001

SMART AJ
BLANCH AJ

27 June, 2002

REGINA v Peter KELLY

Judgment

1. BLANCH AJ: This is an application for leave to appeal against a sentence imposed at Sydney District Court on 23 November, 2001. On that day, the applicant entered a plea of guilty to an offence of aggravated break, enter and steal contrary to s112(2) of the Crimes Act, which carries a maximum penalty of 20 years.  He was sentenced to five and a half years imprisonment to commence on 14 July, 2001.  A non-parole period was specified of three years to expire on 13 July, 2004.  In imposing the sentence, the judge took into account an offence of possessing 0.09 grams of heroin.

2. The facts presented to the Court were that on Saturday, 14 July, 2001 at 6.45 a.m. the applicant and Wayne Elliott entered the Bova Chemist shop at Caringbah by smashing a window.  Elliott levered open the roller door to the shop and the applicant went in and stole drugs, a cash box and a number of telephone cards.  Some of this activity was recorded on a security video tape and at 7.15 a.m. both the offenders were arrested.  In the course of this arrest, the applicant managed to run away from the police but was chased and caught after a short distance.  The police indicated that the applicant was not interviewed on his arrest because of his drug-affected state, he apparently having swallowed some of the Serepax tablets taken from the chemist shop.  The sentencing judge came to the conclusion that the offence could not be categorised as one of the most serious forms of aggravated breaking, entering and stealing.  There was no weapon, there was no violence, there was no actual harm to any person, there was no deprivation of liberty and it appears to have been an offence committed with only a moderate degree of planning.

3. The applicant has a long history of drug use.  It appears the offence was motivated by a desire to obtain drugs.  As soon as the applicant got the drugs, he took them.  This Court has often said that an addiction to drugs is no excuse for committing crimes.  It can, however, sometimes lead to an understanding of the motivation for the commission of a particular crime.

4. The applicant was born on 12 May, 1976 and he was 25 at the time this offence was committed.  The pre-sentence report indicated his parents divorced when he was three.  His father was killed in a helicopter accident in 1990 and that apparently had a tragic effect on him.  He ran away from home and began using drugs and committing offences.  His history since then has been one of a constant struggle against his drug addiction.  The sentencing judge summarised it in this way:

   “According to the pre-sentence report the prisoner undertook the Odyssey House Drug Rehabilitation Program in 1995 for seven months and appeared to those who were conducting that program to be committed to his rehabilitation.  He recently, as a condition of his suspended sentence, attended the Kadaicha House Rehabilitation Program and again was the subject of positive reports concerning his commitment to rehabilitation.  He has from time to time been on a methadone program and I am told that he is now on one.  Unfortunately, all of these good attempts appear to have come to nothing as soon as the prisoner has left the structured environment of these respective rehabilitation programs.”

5. The applicant has a criminal history going back to Sutherland Children’s Court in 1992 and it is a continuous history of dishonesty and drug offences from then until this offence was committed.  He has served periods in custody imposed by the Local Court but this was his first appearance before the District Court.  On 10 November, 2000 he received a suspended sentence of nine months at the Downing Centre Local Court and the nine month bond associated with that order was current at the time this offence was committed.

6. Two comments by the sentencing judge are the subject matter of the appeal.  The first is the statement that “… there are two serious matters of aggravation in this prisoner’s situation.  He has for a man twenty-five a depressingly lengthy criminal history …”.  It may be the sentencing judge was using this term loosely in the context of the pressure of work in the District Court.  Unfortunately, on the face of it, it appears to infringe the principle restated by Justice Gummow in Ryan v The Queen (2001) 75 ALJR 815 at paragraph 67 where he said:

   “The ‘cardinal rule’ is said to be that, whilst ‘good character’ may operate in mitigation, ‘bad character’ cannot operate in aggravation because a person is not to be punished or punished again for crimes other than that for which sentencing is passed.”

7. The second point raised about the sentencing judge’s remarks is that the judge noted the plea was at the earliest date in the Magistrates’ Court but he assessed its utilitarian value as falling “towards the bottom of the range.” Insofar as assessing the plea of guilty as an expression of contrition, the judge noted “The prisoner was caught virtually redhanded” but went on to say “Nonetheless I accept that he is contrite.”  Bearing in mind the plea of guilty from the outset and a finding of contrition, it is said that the allowance of a six month discount on a six year sentence is not an appropriate discount for the plea within the principles enunciated in R v Thompson and Houlten (2000) 49 NSWLR 383.

8. In my view the submissions made on behalf of the applicant in respect of both these matters establish that on the face of it, an error has occurred and there will need to be a re-sentencing.

9. In that re-sentencing process, it will be necessary to take into account the sentence which has since been passed on the co-offender Elliott.  On 1 May, 2002 he came before another judge in the District Court and he was sentenced to imprisonment for three years with a minimum term of eighteen months.  That sentence was imposed partly on the basis that it was accepted Elliott had gone to the local McDonald’s restaurant to buy his breakfast and was walking home when he met the applicant near the chemist shop and the applicant said to him “Mate, can you give me a hand to get this door open?” and he agreed to help the applicant open the door.  He said he had no involvement beyond that.  He did not go into the shop and he was given a bag of coins as his part of the proceeds.  Elliott also had a significant criminal history and also had a drug problem.  There is the need in this case to avoid a justifiable sense of grievance when imposing a sentence on this applicant.

10. As I have indicated, the sentencing of Elliott was done on the basis that he was minimally involved in the commission of this offence.  Elliott was also on a bond to be of good behaviour for eighteen months for an offence of stalking at the time of the offence.  In my view, there is justification in imposing a greater sentence on this applicant than the sentence imposed on Elliott because there is no doubt the applicant was the person who went into the shop and stole property.  He must be sentenced on the basis of full culpability for the offence.  That is quite different to the way in which Elliott was sentenced. 

1. A countervailing consideration in this case is the fact that Elliott did not plead guilty at the earliest opportunity.  Indeed, he was committed for trial to the District Court and a trial commenced on two occasions, and both trials were aborted.  It was only after both of those trials were commenced, and he came before the Court on a third occasion, that he entered his plea of guilty.

1. I note that in sentencing Elliott, Hosking DCJ indicated that he had given to Elliott an almost 25 per cent discount for the plea of guilty.  That is a countervailing factor, when considering that this applicant has a greater degree of culpability in the crime.

1. Weighing those two matters together, I propose that leave to appeal be granted, that the appeal be allowed and the sentence quashed.  I would impose a sentence of three and a half years imprisonment to commence on 14 July, 2001 and in respect of that head sentence and allowing for special circumstances, I would specify a non-parole period of twenty one months to expire on 13 April, 2003.

1. SMART AJ:  I agree.  The orders will be as proposed by Blanch AJ.

LAST UPDATED:               17/07/2002