R v Kelly

[2018] ACTSC 160

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Kelly

Citation:

[2018] ACTSC 160

Hearing Date:

30 May 2018

DecisionDate:

30 May 2018

Before:

Elkaim J

Decision:

See [13]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – obtaining property by deception – failing to stop motor vehicle for police

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT)

Parties:

The Queen (Crown)

Christopher Kelly (Offender)

Representation:

Counsel

Mr D Sahu Khan (Crown)

Mr J Cooper (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Aboriginal Legal Service (NSW/ACT) Limited (Offender)

File Numbers:

SCC 40 of 2018; SCC 41 of 2018

ELKAIM J:

1. The offender pleaded guilty to six offences. These pleas were entered at different times. Notwithstanding the fact that some of the pleas were entered in the Magistrates Court and some in this Court, it is clear that the pleas have significant utilitarian value. In my view, the offender is entitled to a discount of 20% for his pleas of guilty.

1. The six offences to which the offender has pleaded guilty are:

(a)One count of aggravated robbery (CC 2017/12377). The maximum penalty for this offence is 25 years’ imprisonment and/or a fine of $375,000.

(b)Four counts of obtain property by deception (CC 2017/12378; CC 2017/12379; CC 2017/12380; CC 2017/12381). The maximum penalty for each offence is 10 years’ imprisonment and/or a fine of $150,000.

(c)One count of fail to stop when required to do so by police as a repeat offender (CC 2017/12382). The maximum penalty for this offence is three years’ imprisonment and/or a fine of $45,000.

1. The offences arise out of a silly escapade in which the offender and two co-offenders stole a lady’s pursue, got into a motorcar and drove away. The offender used a credit card in the lady’s purse to make some relatively modest purchases on four separate occasions. Some days later, when the police saw the vehicle that had been used in the commission of the offence, the offender failed to stop as directed.

1. The offender is 25 years of age, having been born in 1993. Unfortunately, he has a bad criminal record, which includes some driving offences, offences involving dishonesty and an aggravated robbery. He has spent a fair amount of time in prison. He was, in fact, in prison until about a month before these offences were committed.

1. The offender’s background is set out in a general manner in the Pre-Sentence Report. However, this report must be treated with some caution. It is clear that the offender and the author of the report (or, at least, the person that the offender spoke to) did not get along very well.

1. This is highlighted in the paragraph relating to the offender’s attitude to the offences. The report states that the offender disagrees with the Statement of Facts and does not accept responsibility for the offences. The offender gave evidence before me today in which he contradicted that statement and took full responsibility for the offences and agreed with the Statement of Facts. I do not know what went wrong in the Pre-Sentence Report interview. Suffice to say that I am satisfied that the offender does accept the facts and takes full responsibility for his offending.

1. The offender’s background is extreme unfortunate. He was exposed to violence at an early age, so much so that he left his family home as a child and spent a lot of his youth couch surfing or living on the streets. He has had major problems with alcohol and drugs. His alcohol problem resulted in him contracting a major pancreatic illness when he was 16 years’ old and he told me today that he has had some issues with his heart, although it is difficult to know the nature and extent of those problems.

1. The offender has had a drug problem. He is currently on a methadone program. He has told me that he is gradually working his way towards getting off the program and being free of all drugs. The offender has told me that he has essentially realised that his life needs to be turned around. He said that if he has any prospect of having a family, or of having a decent job, he needs to entirely change his lifestyle. He has told me that he wishes to change his life and effectively has, through his counsel, pleaded for an opportunity for this to occur.

1. When sentencing a young person, rehabilitation and hope for the future play a very major role. This is clear when one looks at the objects and principles of sentencing, as set out in the Crimes (Sentencing) Act 2005 (ACT). The other side of the argument is, of course, that aggravated robbery, which is the primary offence that I am dealing with, is a very serious offence. This is highlighted by the fact that the offence attracts a maximum penalty of 25 years’ imprisonment.

1. The authorities which both sides have referred me to illustrate that the courts have taken an extremely diverse approach in dealing with this offence. Each offence does, of course, depend on its own facts and each offender has subjective features that are relevant only to that offender. Counsel for the offender has said that if the offender is to have any future he needs to be released as early as possible and put under a form of supervision that will assist him to achieve a normal life.

1. It is difficult to know exactly what to do when one is dealing with a person with such a bad record, who seems to have not paid much attention to his rehabilitation before, but now wants to try and get things on a proper track. I have decided on a course which is closer to that sought by the offender but which does not completely accord with it.

1. I think that principles of totality must be considered. However, in this case I intend to treat all of the minor offences of obtaining property by deception concurrently. They will each attract a term of imprisonment of one month. They will run concurrently with the sentence for the offence of aggravated robbery. I think that there needs to be a degree of accumulation and that will be reflected in the sentences for the failure to stop and the aggravated robbery.

1. I make the following orders:

(a)In respect of the offence of aggravated robbery (CC 2017/12377), the offender is sentenced to 1 year 2 months and 11 days’ imprisonment commencing on 7 December 2017 and ending on 17 February 2019.

(b)In respect of the offence of obtain property by deception (CC 2017/12378), the offender is sentenced to 1 month imprisonment commencing on 7 November 2017 and ending on 6 December 2017.

(c)In respect of the offence of obtain property by deception (CC 2017/12379), the offender is sentenced to 1 month imprisonment commencing on 7 November 2017 and ending on 6 December 2017.

(d)In respect of the offence of obtain property by deception (CC 2017/12380), the offender is sentenced to 1 month imprisonment commencing on 7 November 2017 and ending on 6 December 2017.

(e)In respect of the offence of obtain property by deception (CC 2017/12381), the offender is sentenced to 1 month imprisonment commencing on 7 November 2017 and ending on 6 December 2017.

(f)In respect of the offence of fail to stop when required to do so by police (CC 2017/12382), the offender is sentenced to 3 months’ imprisonment commencing on 7 November 2017 and ending on 6 February 2018.

(g)The sentence is suspended on 6 August 2018 on condition that the offender enter into a Good Behaviour Order for a period of 12 months and comply with his obligations under the Crimes (Sentence Administration) Act 2005 (ACT) and further that he accept the supervision of ACT Corrective Services and obeys all reasonable directions of the Director-General or her delegate for 12 months or such shorter time as the Director-General decides. The Good Behaviour Order is subject to the following additional conditions:

(i)The offender is to engage in one-to-one counselling to address illicit substance use;

(ii)The offender is to engage with a job network provider;

(iii)The offender is to engage with a mental health professional;

(iv)The offender is to undertake, if appropriate, cognitive based therapy to address antisocial attitudes.  

I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 30 May 2018