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
[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.
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Details
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.