SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: / R v KellyCitation: / [2016] ACTSC 281
Hearing Date(s): / 15 August 2016
Decision Date: / 22 August 2016
Before: / Refshauge J
Decision: / 1. The Good Behaviour Order made on 23November 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 21January 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 19April 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 vTheQueen (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
RvJM [2014] ACTSC 380
RvMcMahon [2014] ACTSC 280
R v Ngerengere [2015] ACTSC 224
R v O’Brien [2013] ACTSC 42
R v Robertson (No 2) [2016] ACTSC 65
RvRoux (No 2) [2015] ACTSC 361
Saga v Reid [2010] ACTSC 59
Williams v The Queen (2016) 75 MVR 482
Wong vThe 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:
1. 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; RvRoux (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] ACTSC42.
2. Such matters are a significant problem for our community and the courts must play their part in showing that such offending is unacceptable.
3. Appearing before me for sentence is Ian William Kelly, who has pleaded guilty to offences of aggravated burglary and theft committed on 21 January 2016.
4. Aggravated burglary is an offence contrary to s 312 of the Criminal Code 2002 (ACT), which provides for a maximum penalty of 20 penalty units (that is, at the time, a fine of $300 000) and 20 years imprisonment.
5. Theft is an offence against s 308 of the Criminal Code, for which the maximum penalty provided is 1000 penalty units (that is, at the time, a fine of $150 000) and 10 years imprisonment.
6. 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].
The facts
7. I take the following facts from the Crown’s Statement of Facts, tendered without opposition and admitted into evidence.
8. At around midnight on 21 January 2016, Mr Kelly and a co-offender attended some apartments in Griffith, ACT, and used a large flat-bladed screwdriver to manipulate the locking mechanism of a secured door leading from a courtyard in the apartments to the foyer. They gained entry and their entry was captured by closed-circuit television.
9. They then proceeded to the underground car park where there were a number of locked storage containers.
10. They entered a storage container and took a road bicycle, a mountain bicycle, and an electric guitar and amplifier, with a total value of approximately $8350.
11. They then left the building and were again captured by closed-circuit television as they left, walking up the entry slope exit ramp.
12. Following a report of the incident, police viewed the closed-circuit television footage and identified Mr Kelly’s co-offender by a tattoo on his left forearm. They then proceeded to obtain a search warrant for the co-offender’s residence which was executed on 19 April 2016, when police seized items of clothing which matched those worn by the co-offender during the commission of the offences.
13. During the execution of the warrant, the co-offender made a number of admissions including that he had been in the company of his uncle, Mr Kelly.
14. Later that day, Mr Kelly was arrested and police seized his shoes and necklace with a pendant, which matched items observed in the closed-circuit television footage.
The offences
15. As noted above (at [6]), aggravated burglary is an extremely serious offence. It has the same serious consequences as burglary, but with the added circumstance of aggravation which, in this case was that Mr Kelly was in company when he committed the burglary.
16. 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 particular value as recreational vehicles and instruments. The loss of property, in any event, also causes inconvenience, even if only the need to make claims on insurance or to replace them. Any payout by insurance companies also has an effect on the community by the inevitable rising of premiums.
17. Further, the intrusion into private places by trespass in a burglary or aggravated burglary is often disturbing to victims who feel violated. They also feel concerned about the safety of their property for the offence becomes a violation of privacy and security.
18. In this case, the 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].
19. While the fact that Mr Kelly was in company means the offence is a very serious one, entry in company into residential premises is particularly serious especially where the occupants might encounter the burglars. This particular case is perhaps, not so serious a form of aggravation, because it was in a separate, basement garage. But of course, tenants are likely to visit the garage from time to time including at late hours.
20. Other than this, the offence was a relatively unremarkable version of the offence with no particular aggravating features, apart, perhaps, from the use of the screwdriver, though still a serious offence, committed while Mr Kelly was on conditional liberty and less than two months after his release.
21. Mr Kelly says that the offence occurred because he was responding to problems of his nephew who was, at the time, living with him. It appears that his nephew, his co-offender, was a drug user and had accumulated a significant drug debt, which he was being pressed to repay. Mr Kelly thought that these offences would be a way in which he could do that. It was a stupid decision, leading to criminal acts of significant seriousness. Mr Kelly, of course, was not to obtain any benefit himself from the offending. This mitigates his culpability to a small degree.
22. He acknowledged the impact that his offending would have had on the victims and expressed regret for his decision to take property that did not belong to him. This insight and expression of remorse is important.
The proceedings
23. Mr Kelly was arrested on 19 April 2016 and remanded in custody. He has been in custody ever since.
24. He was, at the time of the offences, on conditional liberty under a Good Behaviour Order made when certain sentences of imprisonment were suspended.
25. Mr Kelly entered a plea of guilty in the Magistrates Court and was, on 12 May 2016, committed for sentence to this Court.
26. The victim of the offending has sought reparation in the sum of $8350. The co-offender’s share of this sum is $4175.
Subjective circumstances
27. A helpful 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.
28. Mr Kelly was born in Wagga Wagga about 51 years ago, one of 11 children in a blended family. He is of Aboriginal descent.
29. He described a traumatic and difficult childhood, including exposure to domestic violence and alcoholism. In particular, his father was a violent man who used abuse as a way of controlling the family. The effects of such disadvantage are relevant to sentence as a mitigating factor and full weight should be given to this, despite the passage of time: Bugmy vTheQueen (2013) 249 CLR 571 at 592-6; [36]-[47].
30. A year after Mr Kelly’s birth, the family relocated to Queensland. Mr Kelly’s father’s violence eventually resulted in his parents’ separation when he was 11. MrKelly’s father left the family home taking only the youngest child. Mr Kelly’s father contacted Child Welfare Services which resulted in the placement of all children in the care of the State. Mr Kelly resided in care homes and foster care until 15 when he returned to live with his mother and siblings. He eventually left the family home when he was 24.
31. Mr Kelly had no further contact with his father before his father’s death in 1990. His mother had re-partnered and he had a positive and supportive relationship with his step-father, who died in 2006. He remained in a supportive relationship with his mother and siblings despite his difficulties. His mother, however, was diagnosed with a terminal illness prior to his arrest and died while he was in custody. This has had a profound effect on him, exacerbating his depression.
32. Mr Kelly left mainstream education to gain employment but has been unemployed since 2011.
33. Unfortunately, Mr Kelly associates with people known to the criminal justice system but has expressed a wish to disassociate himself from negative peer influences, initially in order to support his mother through her illness.
34. He acknowledged that an excessive amount of idle time available to him contributed to his criminality. He has, more recently, briefly engaged with the Winnunga Nimmityjah Aboriginal Health Service during his most recent period in the community and hopes to re-engage on his release from custody.
35. Mr Kelly began using alcohol at age 15, but in a limited way until he was 27, when it escalated to binge drinking to intoxication every weekend for a number of years. He says he ceased all consumption of alcohol in 1996.
36. He started using cannabis when he was 16 and has maintained use of that substance for most of his life.
37. When he was about age 30, his illicit substance use escalated and he started using amphetamines and heroin, which have been the most problematic for him. He used heroin intravenously for about 10 years but says that he ceased its use in 2006. He has, however, continued to use cannabis and methylamphetamines, the latter drug he substituted for the heroin he was using. He does not consider his use of methylamphetamines as problematic. That may be so in the sense that he may not be addicted, but it is still an illegal drug and its use will cause him problems. He has, it appears, been participating in a pharmacotherapy program, which also appears to have reduced his use of methylamphetamines. He also participated in the Solaris Therapeutic Program while previously in custody. I have described the Program in RvJM [2014] ACTSC 380 at [26].
38. Mr Kelly has some medical problems. He suffers from coronary heart disease and, indeed, had a major coronary attack when he was in custody in 2008. He has since experienced fainting and chest pain. This will, of course, limit his activities.
39. Mr Kelly has suffered from depression for some time. As noted above (at [31]), his mother’s death has exacerbated that. He has also been affected by the fact that his incarceration means he has little chance of managing or participating in the management of her estate. He has, in the past, experienced suicidal ideation. He has not engaged with mental health professionals, though he did not provide any explanation for that.
40. Mr Kelly has a long and serious criminal history. He has been found guilty of about 225offences, over half of which are offences of dishonesty, mainly burglary or equivalent offences and theft, usually associated with the burglary, but also separate offences. He has spent many years in custody. He has also breached court orders, recognizances and bonds on 15 occasions. The other large proportion of offences are 38 traffic offences, including more serious such offences.