R v Kelly
[2015] ACTSC 158
•12 June 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kelly |
Citation: | [2015] ACTSC 158 |
Hearing Date(s): | 23 April 2015, 2 June 2015 |
DecisionDate: | 12 June 2015 |
Before: | Burns J |
Decision: | See [13]-[17] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – particular offences – property offences – aggravated burglary – theft – offence committed in company. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 11 (4) (b) |
Parties: | The Queen (Crown) Paul David Kelly (Offender) |
Representation: | Counsel Mr G Mansfield (Crown) Ms H Hayunga (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 226 of 2014 |
BURNS J:
Background
Paul Kelly, you appear before me today to be sentenced for one offence of aggravated burglary and one offence of theft. The circumstance of aggravation involved in the burglary offence is that you were in company with your co-offender, Derek Williams, as the time of the offence. I note that maximum penalty for the offence of aggravated burglary is a sentence of 20 years’ imprisonment, a fine of $140,000.00 or both. The maximum penalty for the offence of theft is 10 years’ imprisonment, a fine of $140,000.00 or both.
An Agreed Statement of Facts was tendered at the sentence hearing. It is not necessary for me to recite the facts in their entirety. It is sufficient to note that you were part of a joint enterprise of entering retail premises in Fyshwick at about 3.48 am on 22 May 2014. At that time, those premises were unoccupied and entry was gained by smashing a pane of glass next to the front door. A total of $250.00 in cash was taken from the till and a number of items of clothing were also taken. The value of the property taken was not significant, being approximately $500.00. You and your co-offender travelled to the store in a red Corolla motor vehicle, which had been taken without the owner’s consent from premises in Garran sometime between 17 May 2014 and 22 May 2014. It is not suggested that you were involved in either taking this vehicle or subsequently driving it. When you left the store, your co-offender drove the red Corolla with you as a passenger. Very shortly thereafter, you were observed by police who tried to stop the vehicle. A pursuit then occurred until ultimately your co-offender alighted from the vehicle and attempted to run away. You were both arrested shortly thereafter.
You were given the opportunity to participate in a taped record of interview with police, but you declined.
Consideration
You entered pleas of not guilty to these charges in the Magistrates Court and you were committed for trial on 18 July 2014. On 26 February 2015, you indicated pleas of guilty would be entered to these charges. At that time, these charges were listed for callover on 2 March 2015. It cannot be said that these pleas were entered at the earliest opportunity, however I will reduce the otherwise appropriate sentences by approximately 15 percent to reflect your pleas of guilty.
Like your co-offender, you have an extensive criminal history, although your criminal history was accrued mainly in South Australia. However, I observe that, on 22 February 2013, you were convicted in this Court of one charge of aggravated burglary involving an intention to cause harm and sentenced to 2 years and three months’ imprisonment, backdated to 17 October 2011. You were released on 22 February 2013 on a Good Behaviour Order for 12 months, which you did not breach, so, unlike your co-offender, you were not on conditional liberty at the time of the present offences.
I take into account the contents of the Pre Sentence Report prepared for your sentence hearing. I note that you are 34 years old and that you do not come from a disadvantaged background. The author of the Report states that your behaviour in custody before you were sentenced for the aggravated burglary offence in 2013 was satisfactory and you participated in education and employment opportunities. I further note that your compliance with bail conditions pending this sentence has been satisfactory. It is a significant matter, enhancing your prosects of rehabilitation, that you have continuing contact with your extended family and that you are in a stable relationship with stable accommodation and employment.
You unfortunately have a long history of substance abuse. You told the author of the Report that you commenced the use of methylamphetamine at age 18, and you continued to use that substance until you were arrested on the present charges in 2014. You reported ceasing the use of methylamphetamine at that time. This is supported by the results of drug screening tests that have been conducted since you have been on bail.
The author of the Report has assessed you as at a medium risk of reoffending. Whilst the author of the Report has assessed you as unsuitable for periodic detention for employment reasons, I note that you have signed the relevant undertaking and you indicated through your counsel a willingness to undertake periodic detention if that is considered appropriate.
I consider that your prospects of rehabilitation are reasonable to good, depending upon you maintaining a commitment to avoid illicit drugs and criminal companions. I agree with the author of the Report that your prospects of rehabilitation would be enhanced if you were to accept appropriate counselling, something that you have been reluctant to embrace to date.
I note that you told the author of the Report that you were under the influence of illicit drugs at the time of this offence, and that you had been coerced into accompanying your co-offender. I give this latter assertion little weight.
There appears to me to be little reason to distinguish between yourself and your co‑offender in terms of responsibility for the offences of aggravated burglary and theft. It does appear to me, however, that your prospects for rehabilitation are somewhat better than those of your co‑offender. Another significant difference to my mind is that you were not on conditional liberty at the time you committed these offences, as your co-offender was. I am satisfied that I am justified in taking a somewhat different approach to sentencing in your case than that which I adopted with your co‑offender.
On 5 June this year, I sentenced your co‑offender to a term of two years and one month’s imprisonment for the offence of aggravated burglary, and to a term of five months' imprisonment for the offence of theft, of which two months were to be served consecutively with the sentence imposed for aggravated burglary. I sentenced your co‑offender at the same time to other terms of imprisonment for further offences which are not presently relevant.
Sentence
I record a conviction for the offence of aggravated burglary, and you are sentenced to 20 months' imprisonment, which I have reduced from 24 months in order to reflect your plea of guilty. For the offence of theft, I record a conviction and you are sentenced to four months' imprisonment, of which one month is to be served consecutively upon the sentence for aggravated burglary. I order that nine months of that sentence is to be served by way of periodic detention, with the balance suspended.
There will be a Good Behaviour Order for a period of two years from today, with the following conditions that:
(a)you are to accept the supervision of ACT Corrections and comply with all reasonable directions of officers of that service for that period of two years, or such lesser period as deemed appropriate by your supervising officer;
(b)you are to undertake any referral, assessment and/or treatment for alcohol and drug abuse as directed by you supervising officer, and you are to undertake any referral or counselling for trauma, and you are to participate in any referral to cognitive behaviour therapy; and
(c)you are to report to ACT Community Corrections at Eclipse House by 4 pm next Tuesday, 16 June 2015.
The difficulty, of course, with imposing periodic detention at 2.15 pm on a Friday afternoon is that he would be required to attend this evening to undertake periodic detention, which seems to me to be somewhat unreasonable, if not entirely impractical. Both the sentences that I have imposed and the periodic detention period will commence next Friday, 19 June 2015, pursuant to s 11 (4) (b) of the Crimes (Sentencing) Act 2005 (ACT). The periodic detention period will then conclude on 14 March 2016.
Mr Kelly, I have taken a somewhat different approach to you than I have taken to your co‑offender. I have set fairly similar terms of imprisonment, based upon the fact that you were both parties to the same offence. The most significant factor which persuaded me to give you an opportunity to serve this sentence by way of periodic detention and partially suspended sentence is the fact that you were not on conditional liberty; that is, on parole, at the time of the commission of these offences.
Now, you must do something about drug and alcohol abuse. As I said, it appears from the Report that, to this point, you have been reluctant to engage in appropriate counselling or treatment. I have made it a condition of your Good Behaviour Order, which is part of that sentence of imprisonment which has been partially suspended, that you comply with directions that are given to you by Adult Corrections about attending such programs. If you do not comply with such directions you will be brought back before the Court to be dealt with on a breach of these orders, at which time you should expect to spend some time in actual custody.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 21 July 2015 |
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