R v Kelly (No 2)

Case [2021] ACTSC 253


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Kelly (No 2)

Citation:

[2021] ACTSC 253

Hearing Date(s):

17 September 2021

DecisionDate:

21 September 2021

Before:

Refshauge AJ

Decision:

1.    That the Good Behaviour Order made on 30 May 2018 be cancelled.

2.    That the period of 6 months and 11 days imprisonment, that being the remaining period of the sentence then imposed which was suspended, be imposed to be served from today, 21 September 2021.

3.    It be noted that the non-parole period set by Chief Magistrate Walker on 30 August 2021 has been cancelled.

4.    A non-parole period to commence on 21 April 2021 and end on 20 January 2022 be set.

5. Under s 67 of the Crimes (Sentencing) Act 2005 (ACT), it be recommended to the Sentence Administration Board that the following conditions be made with a Parole Order:

a.    That Christopher Kelly be assisted to consider engaging with drug rehabilitative agencies to determine whether he would benefit from assistance to manage his drug dependence and, if so, assisted to engage with such professional counselling and treatment; and

b.    That Christopher Kelly be assisted to obtain post-custodial employment and given assistance to engage with appropriate agencies such as a job network provider.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Cancellation of Good Behaviour Order – Childhood Disadvantage – Imposition of Suspended Sentence

Legislation Cited:

ACT Magistrates Court, Practice Direction 1/2012: Galambany Court, August 2012

Crimes (Sentence Administration) Act 2015 (ACT) ss 110, 130
Crimes (Sentencing) Act 2015 (ACT) ss 12A, 12(3), 66, 67
Crimes Act 1900 (ACT) ss 374(6)
Criminal Code 2012 (ACT) ss 110, 318(2), 361(1)
Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 20(1)
Road Transport (Diver Licensing) Act 1999 (ACT) s 31(1)
Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 5C
Road Transport (Third-Party Insurance) Act 2008 (ACT) s 17(1)

Road Transport (Vehicle Registration) Act 1999 (ACT) s 18(1)

Cases Cited:

Amos v McCarron [2017] ACTSC 6; 79 MVR 179

BK v Middlemiss [2018] ACTSC 158
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Douglas v The Queen (1995) 56 FCR 465
Guy v Anderson and Telford [2013] ACTSC 5
Gyorhe Queen [2012] ACTCA 28
R v Beniamini (No 2) [2017] ACTSC 32
R v Bennett [2017] ACTSC 104
R v CA [2016] ACTSC 378
R v Collier (No 2) [2021] ACTSC 177
R v Curtis (No 2) [2016] ACTSC 34
R v Curtis (No 3) [2017] ACTSC 101
R v Cuthel [2016] ACTSC 91
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Kelly (2018) ACTSC 160
R v Kelly [2021] ACTSC 143; 16 ACTLR 81
R v Ogilvie [2016] ACTSC 265
R v PM (No 2) [2015] ACTSC 358
R v RB [2015] ACTSC 34
R v Williams [2015] ACTSC 15
Saga v Reid and Collett [2010] ACTSC 59
Thompson v Young [2008] ACTSC 11

TM v Karapanos

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AGLC
R v Kelly (No 2) [2021] ACTSC 253
Case
[2021] ACTSC 253
Decision Date

CaseChat Overview and Summary

This case involved the sentencing of Christopher Kelly for breaches of two Good Behaviour Orders. Kelly had previously been sentenced to a suspended sentence of imprisonment for a series of offences, including aggravated robbery, and a Good Behaviour Order was imposed on him. Kelly subsequently breached the Good Behaviour Order by committing a series of further offences, including driving an uninsured vehicle and driving without a licence. The court was required to decide the appropriate sentence for Kelly's breach of the Good Behaviour Order. The court considered a range of factors in determining the sentence, including the nature of the original offending and the breach, the proportion of the Good Behaviour Order served before the breach occurred, the rehabilitation achieved in the time during which the Good Behaviour Order had been served, the prospects of further rehabilitation, and the offender's level of understanding of the obligations and the terms of the Good Behaviour Order and of the consequences of the breach. The court also considered Kelly's personal circumstances, including his disadvantaged childhood and his drug dependency. The court decided to impose the balance of the sentence that was suspended, being six months and 11 days imprisonment, and to set a new non-parole period that ends on 20 January 2022. The court also recommended conditions of parole under s 67 of the Sentencing Act, including that Kelly be assisted to consider engaging with drug rehabilitative agencies and that he be assisted to obtain post-custodial employment. The court emphasised the importance of supporting Kelly's intention to rehabilitate and to devote himself to his family. The court also emphasised the need to show that the breaches of the Good Behaviour Order must be taken seriously, and that the community needs to be satisfied that Kelly's offending will not be washed away simply because he has had a hard life and says he is going to do better.

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