R v Kelly
[2017] ACTSC 285
•1 September 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kelly |
Citation: | [2017] ACTSC 285 |
Hearing Date: | 3 July 2017 |
DecisionDate: | 1 September 2017 |
Before: | Penfold J |
Decision: | See [45] – [50] below. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – minor theft – obtaining property by deception – no criminal history – alcohol and drug abuse from late teens – diagnosis of major depressive disorder and anxiety disorder – no criminal history – significant progress in rehabilitation – indications of remorse and shame – intensive correction order made. |
Legislation Cited: | Criminal Code 2002 (ACT), ss 312, 321, 326 Magistrates Court Act 1930 (ACT), ss 90A, 90B Supreme Court Act 1933 (ACT), ss 68D, 68D(2) |
Parties: | The Queen (Crown) Jarrod Kelly (Offender) |
Representation: | Counsel Ms S Saikal-Skea (Crown) Mr D Leyden (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Des Leyden Lawyers & Associates (Offender) | |
File Numbers: | SCC 56 of 2017; SCC 57 of 2017 |
The offences
Jarrod Kelly has pleaded guilty to six offences as follows:
(a)one aggravated burglary with intent to steal, arising under s 312 of the Criminal Code 2002 (ACT) and carrying a maximum penalty including imprisonment for 20 years;
(b)four offences of obtaining property by deception, arising under s 326 of the Criminal Code and carrying a maximum penalty including imprisonment for 10 years; and
(c)one minor theft, arising under s 321 of the Criminal Code and carrying a maximum penalty including imprisonment for 6 months.
The aggravated burglary and four obtain property by deception offences were committed to this Court under s 90A of the Magistrates Court Act 1930 (ACT), and the minor theft offence is before me for sentencing under s 90B of that Act and s 68D of the Supreme Court Act 1933 (ACT). For the purposes of s 68D(2) of the Supreme Court Act, I note that I consider it would be in the interests of justice to deal with that offence in these proceedings.
The incidents
Incident 1
The aggravated burglary and the related minor theft were committed in March 2016.
Mr Kelly, along with three other men, only one of whom has so far been identified, entered a residential backyard in Chifley in the early hours of the morning. The residents of the property, who were known to Mr Kelly through drug connections, discovered Mr Kelly and his co-offenders after hearing a noise in the backyard. There was a brief conversation between the residents and the intruders at the rear sliding door of the property, and one of the co-offenders demanded that one of the residents produce his wallet. When the resident said that he had no money, another co‑offender threatened to take his gaming console.
Mr Kelly and his co-offenders then entered the property. One of the co-offenders used force to move one of the residents out of the way. The co-offenders and the residents then began fighting, and the two residents suffered significant injuries.
Mr Kelly witnessed the fight but made no attempt to stop it. When the fight ended, Mr Kelly and his co-offenders took the gaming console and the controllers.
Police attended the property later that morning, and both residents were taken to Canberra Hospital.
When police searched Mr Kelly's home a week later, they found the stolen property behind his television stand. Mr Kelly later participated in a record of interview and told police that he drove his co-offenders to the property; he said that although he did not participate in the assault, he had tried to intimidate and scare the residents. He said that it made him “feel better to see them suffer” and that the residents were getting what they deserved.
Mr Kelly told police that he had intended to return the gaming console to its owners, but could not explain when he planned to do this. I understand that the items are now either in police custody or back with their owners.
During the record of interview Mr Kelly identified one co-offender but was unable to identify the other two co-offenders.
Mr Kelly conceded in oral evidence that it was his idea to go to the victims' house, because he thought that they had said something untrue about him on Facebook. He had driven the other offenders to the scene of the crime and was present during the assault but said (and this seems to be consistent with the agreed statement of facts) that he did not personally engage in violence against the victims.
Incident 2
The four offences of obtaining property by deception were committed later in March 2016.
On 21 March, a person entered the victim's garage which had been left open by her young sons after they got out their bikes. The victim's car had been left unlocked, with her handbag containing her credit card in it, and her handbag was taken from the car.
The next day, Mr Kelly used the victim's credit card at four different service stations, spending $224.73 in total.
On 28 April 2016, Mr Kelly was identified by police from CCTV footage at the service stations.
On 7 September, he was charged with aggravated burglary, and on 31 January 2017 Mr Kelly was charged with the four counts of dishonestly obtaining property by deception.
He has spent no time in custody in relation to any of these charges.
Mr Kelly pleaded not guilty in relation to the aggravated robbery on 4 October 2016, but then pleaded guilty to all charges in the Magistrates Court on 6 March 2017, and was committed to this Court for sentence. The prosecutor accepts these as fairly early guilty pleas and they will be recognised with a sentencing discount.
Evidence
As well as the two statements of facts, the following material was tendered by the prosecution:
(a)a pre-sentence report; and
(b)an intensive correction order (ICO) assessment report about Mr Kelly.
The defence tendered:
(a)evidence of Mr Kelly's enrolment at the Canberra Institute of Technology in a Senior Secondary Certificate;
(b)a reference dated 8 March this year from the mother of Mr Kelly's girlfriend;
(c)a reference from an Anglicare Youth Engagement Officer, Andrew Hill;
(d)a letter from Mr Kelly's mother;
(e)a letter from Ellen McKenzie, Psychologist, about Mr Kelly's attendance at counselling sessions since January this year; and
(f)a psychological assessment of Mr Kelly prepared in January this year by psychologist Shauna Browning.
Oral evidence was given by Mr Kelly himself, and on behalf of Mr Kelly by Ms Browning, who was cross-examined by the prosecutor.
Objective seriousness of the offences
In considering the objective seriousness of the offences, I have had regard to the following matters.
Aggravated burglary is a very serious offence, as shown by the maximum penalty. In this case, the statutory aggravating factor was Mr Kelly's commission of the offence in company with the three other men involved.
The offence was also aggravated by the fact that it was committed:
(a)in residential premises in the early hours of the morning when the victims were likely to be home and were, in fact, home;
(b)against people known to Mr Kelly; and
(c)apparently by way of revenge for something said about Mr Kelly on Facebook.
Mr Kelly told the pre-sentence report author that he was disgusted with himself over the commission of the offences, and expressed empathy with his victims. He also talked to the ICO assessor about the shame he had brought on his family.
In his oral evidence, Mr Kelly said that now, he definitely did not think that the victims “got what they deserved”, and that he would be willing to participate in restorative justice with them to let them know that he was sorry and that he would not have done anything like that if he had been in the right state of mind. He felt guilty about what he had done, and said that if he could speak to his victims he would tell them he was sorry, and if there was anything he could do he would do it.
I note, however, that no application was made for a restorative justice order.
The aggravated burglary, in my view, tended towards mid-range seriousness. The theft was of low-level seriousness, especially noting that the stolen goods were found in Mr Kelly's house and were retrieved. The four deception offences involving small amounts of money (totalling almost $225 across four offences) were also of low-level seriousness.
Subjective circumstances
I have also had regard in this sentencing to Mr Kelly's subjective circumstances.
Mr Kelly is now 20. The offence was committed when he was nearly 19. He has no criminal history, although it seems that he may have engaged in occasional acts of dishonesty from the age of about 16.
The ICO assessment provided the following information about Mr Kelly's background:
Mr Kelly reported he was born and raised in Canberra, and is the youngest of three children born to his parents' marriage. Mr Kelly further reported an unremarkable childhood consisting of positive and supportive relationships with all family members which continues to the present day. [He] did state however that his rebellious and negative behaviours during his adolescence caused stress and conflict within the family home for periods at a time.
Mr Kelly advised that he had been in a positive and encouraging relationship with his current partner for just under 12 months. Mr Kelly's parents confirmed the above information. Further to this, Mr Kelly's girlfriend's mother appears supportive of their relationship.
Due to ongoing poor behaviour, Mr Kelly was expelled from the formal education system prior to completing Year 10. In order to further complete his education Mr Kelly enrolled in a Year 12 course at the Canberra Institute of Technology (CIT) on 6 February 2017. The course is currently on hold pending the current court outcome. Mr Kelly has a history of employment since leaving school, within the construction and retail industries .... He has been employed on a fulltime basis with a local construction company since 11 July 2017. Mr Kelly appeared positive in his employment outlook and stability.
Mr Kelly reported a considerable debt related to personal/car loan, traffic and phone bills. He stated that he entered into the loans while employed and has arrangements in place to have the debts paid via direct debit, and has no issues with meeting the repayments.
Mr Kelly advised that his current peers are predominantly supportive of pro-social behaviour; however he claimed to be easily led in the past in order to appease friends, with a fear of letting them down or being unfriended, and this was an issue with a previous social network.
Mr Kelly began abusing alcohol in his late teens, including regular binge drinking, but told the ICO assessor that his drinking had decreased over the past few months. He began using illicit drugs after turning 18, and within a short period was using cannabis, Ecstasy, methylamphetamine and cocaine, sometimes for days on end, during a period of about 18 months. He claims to have given up illicit drug use earlier this year, and four tests during the ICO assessment period in July and August were negative.
Mr Kelly explained to the pre-sentence report author that he had been affected by drugs at the time of the offences, which made him feel “he could do anything”. In evidence before me, Mr Kelly said that at the time of his offences he was living in a “drug house” with "a bunch of people that take drugs and have nothing more to do with their life", and he also was using a range of drugs. Before the offences, he had begun attending the Anglican Youth Centre, where he played pool and hung around with mates. On the night of the aggravated burglary, he had been drinking and using drugs in Civic. He knew the people whose house was burgled in connection with drugs.
After the offending, Mr Kelly said, he moved back home to live with his parents, but continued to go to the Woden Youth Centre where Andrew Hill was working. Since then, he has spoken to Mr Hill about drug and alcohol abuse and sought help from him. Apart from that, he has been helped by his parents and the psychologist, whom he has seen another 10 times. He has enrolled at CIT, as mentioned, and has been working as a labourer.
Mr Kelly said that he felt “complete regret” about the offences.
Mr Hill's letter confirmed Mr Kelly's engagement with the Woden Youth Centre, and his actions in seeking help to deal with his substance abuse and his mental health problems.
Personal references were provided by Mr Kelly's mother and his girlfriend's mother. Mrs Kelly said that Mr Kelly's behaviour in the last couple of years had caused a “truly difficult time for our family”, but said that, especially since he agreed to see a psychologist, Mr Kelly has made steady progress in getting his life back on track. She said:
Since this time, I have seen great changes in his behaviour, his moods and his willingness to discuss ongoing issues which had not been happening in the last several years. We are assisting Jarrod to reach his potential. Jarrod has developed new life skills, has new goals and is extremely remorseful for [what] he has done.
Mr Kelly's girlfriend's mother, Danielle Williams, said that she had initially worried about her daughter seeing Mr Kelly because she suspected he was a drug user, but that he has now turned his life around. She noted the significant emotional support he has provided to her daughter since a family tragedy, and concluded:
Jarrod has made some very serious errors of judgment in the past but I believe he was affected by drugs and now understands the consequences of his actions. I hope he will continue in a committed relationship with my daughter as he has a great deal of potential. It is my opinion he will continue on the positive path he is now taking and become a successful and happy adult and a productive member of society.
The psychological assessment provided by Shauna Browning suggests a diagnosis of major depressive disorder and possibly Generalised Anxiety Disorder. Ms Browning did note uncertainty about some of her test results, having regard to Mr Kelly's unusual results on one of the standard validity indices, but concluded that negative self-esteem was likely to be part of the cause of these unusual results, combined with apprehension about the possible outcomes of the current proceedings.
As already noted, Mr Kelly claims to have ceased illicit drug use, and also to have reduced his alcohol use to occasional social drinking. He has begun to receive psychological counselling to address depression and anxiety, and to learn better coping strategies. The assessments before me suggest that some help with anger management might also be useful.
The prosecutor said that Mr Kelly's identification of one of his co-offenders had been helpful to the police, even though no charges had been laid. This will also be accounted for in a sentencing discount.
General deterrence
These are offences for which general deterrence is significant. In this case, Mr Kelly may not still be in need of personal deterrence, but it will do him no harm to be aware of the seriousness of his actions and how they are regarded by the community.
Mr Kelly, although not a juvenile offender, is a very young man; his rehabilitation is of major significance in this sentencing, and his prior clean record entitles him to significant leniency at this stage. I consider, however, that an ICO is more likely to promote Mr Kelly's rehabilitation than simply suspending a prison sentence, and accordingly that is the order I shall make.
Other sentencing considerations
I note that Mr Kelly has been assessed as suitable for an ICO and has signed an undertaking to comply with all the obligations of such an order.
Sentence
Mr Kelly, please stand. I record convictions for one aggravated burglary, four offences of obtaining property by deception, and one minor theft.
I now sentence you as follows:
(a)first, for the four deception offences, and for the reasons that we have already discussed about the limited scope for very minor sentences in the context of imposing an ICO, I impose fines of $25 each for those deception offences and I give you one month to pay those fines;
(b)for the aggravated burglary, you are sentenced to 17 months imprisonment, reduced from 2 years having regard to your plea of guilty and your willingness to identify one of your co offenders; and
(c)for the minor theft, you are sentenced to imprisonment for one month, to be served concurrently with the aggravated burglary sentence.
That results in a total sentence of 17 months imprisonment, which is to run from today and will therefore expire on 31 January 2019, and I order that sentence to be served by way of intensive correction.
The ICO is subject to the standard core conditions for ICOs, and I note the advice from your assessor that your continued engagement with a psychologist and engagement with drug counselling, including relapse prevention counselling, will be particularly targeted under the implementation of the order.
I also add a specific condition, being that, if your supervisor considers it appropriate, you engage with, undertake and complete some kind of anger management program.
I add a final condition that before close of business today, which you should assume is 4pm, you attend Corrective Services at Level 1, 249 London Circuit to arrange supervision under your ICO.
Mr Kelly, I need to try and explain what the significance of this order is to you. I assume that your assessor has already explained to you how the order should work, but I need to say a few important things to you.
As I have said, the sentence will start to run today, and it will run for 17 months.
If you comply with all your ICO requirements, do as your supervisor tells you, and generally keep out of trouble, then at the end of that 17 months, you will have finished your sentence without any time in custody.
If you commit another offence during the 17 months that has got a prison sentence attached to it, and that's an offence that carries a penalty of a prison term, not necessarily an offence that you get sentenced to prison for, then you will have to come back here and I will have to re-sentence you for these offences. The expectation under the legislation is that at that point, if you came back having committed another offence that carries a prison term, you would be required to serve out the rest of the term that I have just imposed in full-time custody.
That is not an absolute guarantee, but you should certainly assume that that is what will happen if you commit another offence with an imprisonment penalty in the next 17 months.
Apart from committing offences, if you breach your ICO, or don't comply with the directions of your supervisor, then there are various things that your supervisor or Corrective Services can do in dealing with that, starting with giving you warnings (and I understand you can't get more than three warnings in a year) and moving up to putting you in prison for short periods, either three days or seven days at a time, to remind you that this is serious.
Finally, if your supervisor or the intensive corrections authorities are completely dissatisfied with your behaviour and with your compliance with the order, then the ICO may be cancelled and you will then find yourself serving the rest of the sentence, so from that date until the end date I have specified, in full-time custody, without ever coming back to the Court. It wouldn't be a discretionary matter for the Court, it would be entirely up to Corrective Services.
So agreeing to this order, Mr Kelly, is a bit of a gamble for you, and you do need to make sure that you take this ICO seriously because, as I have said, if you don't take it seriously, you are at risk of serving possibly quite a lot of the sentence in full-time custody, and I have to say I don't think that would be in anyone's interests in this case.
If you have any particular questions about the order as a result of what I have said or otherwise, please ask the court officials when you sign your sentencing documents.
You may sit down.
| I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: 31 October 2017 |
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