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R v Kelly

R v Kelly

Case [2016] ACTSC 281 22 August 2016

Cumulative Custodial Sentence

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kelly
Citation:	[2016] ACTSC 281
Hearing Date(s):	15 August 2016
DecisionDate:	22 August 2016
Before:	Refshauge J
Decision:	1. The Good Behaviour Order made on 23 November 2015 be cancelled. 2. Ian William Kelly be sentenced to nine months imprisonment to commence on 19 April 2016, being the suspended portion of the sentence. 3. Ian William Kelly be convicted of aggravated burglary committed on 21 January 2016. 4. Ian William Kelly be sentenced to two years and three months imprisonment to commence on 19 June 2016. 5. Ian William Kelly be convicted of theft on 21 January 2016. 6. Ian William Kelly be sentenced to 15 months imprisonment to commence on 19 September 2018. 7. A non parole period of 16 months be set to commence on 19 April 2016 and to end on 18 August 2017.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentencing – breach of Good Behaviour Order – aggravated burglary – theft – intent to steal – consideration of breach – subjective circumstances – extensive criminal record – cancellation of Good Behaviour Order – cumulative custodial sentence
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), s 110 Crimes (Sentencing) Act 2005 (ACT), ss 7, 33 Criminal Code 2002 (ACT), ss 308, 312
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 EG v The Queen [2012] ACTCA 17 Fusimalohi v The Queen [2012] ACTCA 49 Guy v Anderson [2013] ACTSC 5 Kelly v Ashby (2015) 73 MVR 360 Muldrock v The Queen (2011) 244 CLR 120 Rees v The Queen [2012] ACTCA 6 Rubino v The Queen [2015] ACTCA 22 R v Baldini (No 2) [2014] ACTSC 163 R v BB [2013] ACTSC 290 R v CA [2014] ACTSC 332 R v Celeski [2016] ACTSC 140 R v Curtis (No 2) [2016] ACTSC 34 R v Gray [2014] ACTSC 376 R v Hawkins [2015] ACTSC 333 R v Hyunh [2005] NSWCCA 220 R v JM [2014] ACTSC 380 R v McMahon [2014] ACTSC 280 R v Ngerengere [2015] ACTSC 224 R v O’Brien [2013] ACTSC 42 R v Robertson (No 2) [2016] ACTSC 65 R v Roux (No 2) [2015] ACTSC 361 Saga v Reid [2010] ACTSC 59 Williams v The Queen (2016) 75 MVR 482 Wong v The Queen (2001) 207 CLR 584
Parties:	The Queen (Crown) Ian William Kelly (Defendant)
Representation:	Counsel Mr S McLaughlan (Crown) Mr A Doig (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Canberra Criminal Lawyers (Defendant)
File Number(s):	SCC 103 of 2016

REFSHAUGE J:

It seems from recent experience in this Court that underground or basement car parks for apartment buildings have become a particular target for those who wish to enter on private premises without authority and to steal property. See R v Celeski [2016] ACTSC 140; R v Roux (No 2) [2015] ACTSC 361; R v Ngerengere [2015] ACTSC 224; R v CA [2014] ACTSC 332; R…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kelly

Details

AGLC: R v Kelly [2016] ACTSC 281
Case: [2016] ACTSC 281
Decision Date: 22 August 2016

CaseChat Overview and Summary

Ian William Kelly was charged with breaching a Good Behaviour Order, aggravated burglary, and theft. The case was heard in the Supreme Court of Queensland. Kelly had a history of criminal activity and was previously subject to a Good Behaviour Order, which he breached by committing further offences. The legal issues before the court involved whether the breach of the Good Behaviour Order warranted a new sentence, and how the court should consider the breach in light of Kelly’s extensive criminal history.

The court considered the subjective circumstances of the breach and the aggravating factors of the new offences. It held that the breach of the Good Behaviour Order was significant and that the cumulative effect of Kelly’s criminal conduct warranted a sentence that reflected the seriousness of the breach and the new offences. The court also noted the need to consider the deterrence and protection of the community in its sentencing decision. The court found that the appropriate response was to cancel the Good Behaviour Order and impose a new custodial sentence.

In its sentencing, the court determined that Kelly should serve a total of three years and six months imprisonment, with a non-parole period of 16 months. The sentences for the aggravated burglary and theft were to run concurrently, with the sentence for the breach of the Good Behaviour Order to commence after the suspended portion of the previous sentence. The court emphasised the need for a sentence that adequately reflected the seriousness of the offences and the need for general deterrence. The court’s decision also took into account the impact of the offences on the victims and the importance of protecting the community from further criminal activity by Kelly.

Orders

Orders of the court

1. The Good Behaviour Order made on 23 November 2015 be cancelled.

2. Ian William Kelly be sentenced to nine months imprisonment to commence on 19 April 2016, being the suspended portion of the sentence.

3. Ian William Kelly be convicted of aggravated burglary committed on 21 January 2016.

4. Ian William Kelly be sentenced to two years and three months imprisonment to commence on 19 June 2016.

5. Ian William Kelly be convicted of theft on 21 January 2016.

6. Ian William Kelly be sentenced to 15 months imprisonment to commence on 19 September 2018.

7. A non parole period of 16 months be set to commence on 19 April 2016 and to end on 18 August 2017.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Kelly [2016] ACTSC 281

Most Recent Citation

R v Horne [2017] ACTSC 36

Cases citing this decision · 4 of 4 shown

R v John
[2017] ACTSC 144 Para 1

…As I have remarked before in R v Kelly [2016] ACTSC 281 at [1], underground or basement car parks for apartment buildings have become a particular target for those who wish to commit burglary by entering private premises as trespassers and to steal property. See also R v Forrest (No 2) [2017] ACTSC 83 at [78].…
R v Kelly (No 2)
[2017] ACTSC 64 Para 1

…avated burglary and 15 months for the theft. I made all the sentences partly concurrent. The sentence and sentencing remarks are set out in R v Kelly [2016] ACTSC 281.…
R v Forrest (No 2)
[2017] ACTSC 83 Para 1

…A matter of concern, however, is the number of burglaries and thefts committed in such areas in Canberra recently. See R v Kelly [2016] ACTSC 281 at [1] and the cases there cited, as well as R v CA [2014] ACTSC 332, R v Ware [2016] ACTSC 264, and R v Horne . While such car parks are usually said to be “secure” car…
R v Horne
[2017] ACTSC 36 Para 1

…ired to cancel a Good Behaviour Order made when that sentence of imprisonment was suspended because those offences breached that order. See R v Kelly [2016] ACTSC 281.…

View all 4 citing cases →

Cases cited in this decision · 25 of 25 shown

R v Celeski
[2016] ACTSC 140 Para 1

…nt buildings have become a particular target for those who wish to enter on private premises without authority and to steal property. See R v Celeski [2016] ACTSC 140; R v Roux (No 2) [2015] ACTSC 361; R v Ngerengere [2015] ACTSC 224; R v CA [2014] ACTSC 332; R v BB [2013] ACTSC 290; R v O’Brien [2013] ACTSC 42.…
Williams v The Queen
[2016] ACTCA 15 Para 1

…In Williams v The Queen (2016) 75 MVR 482, Mr Williams and a co-offender broke into retail premises in Fyshwick and stole property valued at $500. He had a drug addiction which he had tried to resolve by attending residential rehabilitation. He had an extensive criminal history. For the aggravated burglary, he was sentenced t…
R v Robertson (No. 2)
[2016] ACTSC 65 Para 1

…In R v Robertson (No 2) [2016] ACTSC 65, Mr Robertson participated in four aggravated burglaries which were planned and involved the significant destruction of property in order to gain the entry necessary for the trespass. Mr Robertson was 44 years old with a disturbed childhood, but gained and maintained employm…
R v Curtis (No 2)
[2016] ACTSC 34 Para 1

…In R v Curtis (No 2) [2016] ACTSC 34 at [17]-[19] I said:…
Kelly v Ashby
[2015] ACTSC 346 Para 1

…lpful Pre-Sentence Report was admitted into evidence. I also previously heard and decided an appeal he took from a decision of the Magistrates Court: Kelly v Ashby (2015) 73 MVR 360. From these and the submissions of counsel, I can make the following findings.…
R v Roux (No 2)
[2015] ACTSC 361 Para 1

…lar target for those who wish to enter on private premises without authority and to steal property. See R v Celeski [2016] ACTSC 140; R v Roux (No 2) [2015] ACTSC 361; R v Ngerengere [2015] ACTSC 224; R v CA [2014] ACTSC 332; R v BB [2013] ACTSC 290; R v O’Brien [2013] ACTSC 42.…
R v Hawkins
[2015] ACTSC 333 Para 1

…In R v Hawkins [2015] ACTSC 333 at [48]-[51], I explained the gravity of offences of burglary and dishonesty, which are a serious blight on our community. People work hard for the property that they acquire and which, sometimes, has more than monetary value to them. In this case, the property may well have had part…
R v Ngerengere
[2015] ACTSC 224 Para 1

…enter on private premises without authority and to steal property. See R v Celeski [2016] ACTSC 140; R v Roux (No 2) [2015] ACTSC 361; R v Ngerengere [2015] ACTSC 224; R v CA [2014] ACTSC 332; R v BB [2013] ACTSC 290; R v O’Brien [2013] ACTSC 42.…
Rubino v The Queen
[2015] ACTCA 22 Para 1

…In Rubino v The Queen [2015] ACTCA 22, Mr Rubino, the co-offender with Mr Robertson, challenged sentences of four years and five months for each of the aggravated burglaries. He did not have the subjective circumstances of Mr Robertson and had made no particular efforts at rehabilitation. He had a “significant cri…
R v Timothy Glen Gray
[2014] ACTSC 376 Para 1

…In R v Gray [2014] ACTSC 376, Mr Gray, then 24 years old, was sentenced for an aggravated burglary with three other young men on a residential property at Monash. He was sentenced to 15 months imprisonment for the aggravated burglary.…
R v JM
[2014] ACTSC 380 Para 1

…se of methylamphetamines. He also participated in the Solaris Therapeutic Program while previously in custody. I have described the Program in R v JM [2014] ACTSC 380 at [26].…
R v CA
[2014] ACTSC 332 Para 1

…without authority and to steal property. See R v Celeski [2016] ACTSC 140; R v Roux (No 2) [2015] ACTSC 361; R v Ngerengere [2015] ACTSC 224; R v CA [2014] ACTSC 332; R v BB [2013] ACTSC 290; R v O’Brien [2013] ACTSC 42.…
R v McMahon
[2014] ACTSC 280 Para 1

…e same enterprise or otherwise. This is relevant here, for the aggravated burglary and the theft should have a degree of concurrency. See R v McMahon [2014] ACTSC 280 at [96].…
R v Baldini (No 2)
[2014] ACTSC 163 Para 1

…In R v Baldini (No 2) [2014] ACTSC 163, Mr Baldini entered the victim’s home with two others to find drugs and then seriously assaulted the victim. Mr Baldini had good subjective circumstances and his only prior criminal record was for traffic offences. He was employed and, at the end of a deferred sentence order,…
R v BB
[2013] ACTSC 290 Para 1

…steal property. See R v Celeski [2016] ACTSC 140; R v Roux (No 2) [2015] ACTSC 361; R v Ngerengere [2015] ACTSC 224; R v CA [2014] ACTSC 332; R v BB [2013] ACTSC 290; R v O’Brien [2013] ACTSC 42.…
Bugmy v The Queen
[2013] HCA 37 Para 1

…disadvantage are relevant to sentence as a mitigating factor and full weight should be given to this, despite the passage of time: Bugmy v The Queen (2013) 249 CLR 571 at 592-6; [36]-[47].…
R v Blake O'Brien
[2013] ACTSC 42 Para 1

…[2016] ACTSC 140; R v Roux (No 2) [2015] ACTSC 361; R v Ngerengere [2015] ACTSC 224; R v CA [2014] ACTSC 332; R v BB [2013] ACTSC 290; R v O’Brien [2013] ACTSC 42.…
Guy v Anderson
[2013] ACTSC 5 Para 1

…Nevertheless, as I pointed out in Guy v Anderson [2013] ACTSC 5 at [83]-[87], there is, in this jurisdiction, no presumption in favour of imposing the original sentence that had been suspended. Thus, a court may, in an appropriate case, merely sentence the offender to the same sentence, including suspension of th…
Fusimalohi v The Queen
[2012] ACTCA 49 Para 1

…In Fusimalohi v The Queen [2012] ACTCA 49 at [15], Burns and Lander JJ said:…
EG v The Queen
[2012] ACTCA 17 Para 1

…Finally, in EG v The Queen [2012] ACTCA 17, Mr Aldridge was 20 years old with no adult offending. He had good prospects of rehabilitation. For the offence of aggravated burglary, the Court of Appeal re-sentenced him to 18 months imprisonment.…
Rees v The Queen
[2012] ACTCA 6 Para 1

…he property stolen was also of a considerable value, which is relevant to the seriousness of the offence of theft. See, for example, Rees v The Queen [2012] ACTCA 6 at [5]-[6]. See also R v Hyunh [2005] NSWCCA 220 at [12].…
Muldrock v The Queen
[2011] HCA 39 Para 1

…Judged by these severe penalties, the offences are to be regarded by the courts as very serious offences. See Muldrock v The Queen (2011) 244 CLR 120 at 133; [31].…
Saga v Reid
[2010] ACTSC 59 Para 1

…In Saga v Reid [2010] ACTSC 59 at [99]-[101], I adopted what had been said in other cases; namely, that the failure of courts to act where there has been a clear breach of the conditions of a conditional release order, such as a Good Behaviour Order, imposed when a sentence of imprisonment is suspended and by whic…
R v Huynh
[2005] NSWCCA 220 Para 1

…value, which is relevant to the seriousness of the offence of theft. See, for example, Rees v The Queen [2012] ACTCA 6 at [5]-[6]. See also R v Hyunh [2005] NSWCCA 220 at [12].…
Wong v The Queen
[2001] HCA 64 Para 1

…Court of Appeal, has imposed sentences for the offence of aggravated burglary. None of the sentences are, of course, precedents. See Wong v The Queen (2001) 207 CLR 584 at 605; [57].…

Legislation cited in this decision · 2

Crimes (Sentencing) Act 2005 (ACT)
33, 7 3 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
110 2 mentions (from Para 1)