Kelly v R

Facts

1. An agreed statement of facts was tendered which the judge incorporated in her sentencing remarks. The agreed facts may be summarised as follows:

Aggravated enter dwelling with intent to commit larceny and larceny - contrary to ss 111(2), 117 Crimes Act 1999 (NSW)

1. At about 1pm on 13 December 2013, the applicant entered a home in Albion Park where the 17 year old victim was home alone. On hearing noises the victim opened his bedroom door to see the applicant and told him to leave. The applicant ran towards him and lunged at him. The victim shut his bedroom door and tried to keep it closed but the applicant overpowered him. The applicant entered the bedroom and told the victim to get on the ground, threatening to stab him through the skull with a screwdriver.
2. The applicant could not find money in the victim's wallet but took the victim's key-card and demanded the PIN, threatening to return to kill the victim if he was given the incorrect PIN.
3. In response to the demands of the applicant, the victim told him that the only money in the house was located in the pantry. The victim removed a jar containing $100 from the pantry.
4. The victim was crying and begging the applicant to leave.
5. Before leaving the applicant pushed the victim onto the bed with his face down and tied his hands and legs with electrical cords. The applicant also tied a shirt around the victim's face and knotted at the back of his head to prevent him from looking at the applicant. When the victim was sure that the applicant had left, he untied himself and phoned the police. He noted that $100 from the pantry, his wallet, a silver watch and iPhone S4 were taken by the applicant.

Armed robbery - contrary to s 97(1) Crimes Act

1. The victim was the owner of a butcher shop in Cabramatta. Each morning the victim would park in the same spot in the carpark near his shop, and would arrive carrying $4,000 to $5,000 to pay for daily deliveries. This money was kept in a small red bag which was in-turn placed inside a larger beige bag.
2. At about 6.55am on 4 November 2014, the victim noticed the applicant standing at the foot of a nearby stairwell when he arrived at the carpark. The victim was carrying $10,000 in order to pay for two days of deliveries. He hesitated before getting out of the car. When he did so, he placed the bag containing the money over his shoulder and held onto it. He noticed the applicant looking at him and put the money back inside the car.
3. As the victim closed the door, the applicant approached him and produced an object that resembled a handgun. It was about 25 centimetres long and black in colour. The applicant pointed the object at the victim's face, opened the car door and removed the bag containing the money. At that point, the victim, thinking that the object being held by the applicant might be a toy, pushed it away from his face and tried to grab the bag back.
4. During the struggle, the bag dropped to the floor and the applicant pushed the victim's face, causing him to fall down. The victim screamed for help, but nobody came.
5. The applicant picked up the bag containing the money, and ran out of the carpark. The victim gave chase but was unable to catch him.
6. The applicant entered a waiting car which drove off.
7. The bag contained $10,000 in cash, the victim's wallet containing $600 in cash, his licence, Medicare card and other cards and papers.
8. A carpark officer ("officer") had heard the victim's screams and saw the applicant running from the scene. The officer yelled at the applicant to stop. The applicant turned around momentarily and the officer saw him holding a small black object in the shape of a handgun in his right hand. He also had a small beige bag tucked under his right arm. The applicant flashed the object as a warning before running away.
9. The victim returned to the carpark, and noticed the applicant's baseball cap had fallen off whilst he was running away. The applicant had also dropped a set of chrome knuckledusters near the vehicle (Form 1 offence).
10. The bag was handed in to police on 4 November 2014. The only items missing were the smaller bag containing the $10,000 in cash and the $600 in cash from the victim's wallet. There was also a pair of red sunglasses in the bag that did not belong to the victim.

Attempted Armed Robbery - contrary to ss 97(1), 344A Crimes Act 1999 (NSW)

1. The victims were the owners of a butcher's shop located within the Moorebank shopping complex.
2. On 15 November 2014, the applicant entered the butcher shop, while the co-offender (Jesse Kelly) waited outside. He asked about meat products and then left without purchasing anything, saying, "okay, I will come back".
3. The applicant returned to the butcher's shop some two minutes later, while the co-offender waited near the door. The applicant asked for a sausage and as an employee went to get it, he jumped up on the counter and produced a 30 centimetre carving knife. He raised it above his shoulder and demanded money.
4. The employees and customers were terrified, and the customers fled the store, some leaving their belongings behind. One of the owner's grabbed a large butcher's knife and began screaming "you go, you go" at the applicant. The applicant jumped down from the counter and both offenders left the store, returning to a waiting vehicle, which was driven away by a third person (Thomas Kelly).

Subjective Circumstances

1. The applicant was born on 14 October 1969 and was 46 years old when sentenced. He did not give evidence before the judge but the material tendered on his behalf included a report from Dr Gerald Chew, a psychiatrist and a Justice Alcohol and other Drug Report.
2. The reports disclosed that the applicant had been sexually abused from the age of 8 years which continued into his early teen years. He had a 35 year history of poly-substance abuse which included alcohol, cannabis, cocaine and amphetamines. He told Dr Chew that his main problem prior to his offending was his use of ice. He attributed as one of the main reasons for his drug use, the difficulty he had managing his emotions arising from the childhood sexual abuse.
3. Dr Chew reported that the applicant told him that because of his mother's lifestyle, he was exposed to strange men who abused him from the age of 8. This continued and he was subject to sexual abuse on a number of other occasions including at a boy's home in his early teen years. He was in boy's homes from the age of 13-14 and had left school around the age of 16.
4. The applicant told Dr Chew that most of his life had been characterised by repeated incarceration, that he was in gaol every year, mainly short sentences for relatively minor offences and the longest period he ever had out of gaol was 16 months at the age of 40. He has five children aged 17, 16, 14, 12 and 9.
5. The applicant related to the psychiatrist that he had attended Odyssey House on two occasions and had participated in the Drug Court Programme in 2004-2005 but dropped out as he breached the programme's terms by being dishonest about his drug use. He was interested in attending a long term rehabilitation programme and there was a letter before the judge from We Help Ourselves ("WHOs"), an alcohol and other drug programme, stating that WHOs was prepared to admit him into the programme.
6. In a letter to the judge, the applicant referred to being repeatedly raped between the ages of 8 and 15 and to his use of drugs to overcome the problems arising from the sexual abuse. He wrote that there had been only two years in his life when he remained abstinent from drugs. He recognised that he needed help, which he asked the judge to give him.
7. The applicant has an unattractive prior criminal history in New South Wales. He has convictions for offences of dishonesty which include accessory after the fact to armed robbery, break, enter and steal, receiving, larceny and goods in custody. Convictions for offences of violence include assault occasioning actual bodily harm, assaulting a police officer in execution of his duty and common assault. There are also convictions for serious traffic offences. His record reveals breaches of good behaviour bonds, non-compliance with a suspended sentence and community service orders and a contravention of a prohibition in an apprehended domestic violence order. The applicant has been sentenced to terms of imprisonment.
8. The applicant's prior record in Queensland reveals convictions for obstructing police, possessing a dangerous drug and breach of a probation order.
9. At the time the applicant committed the offences of aggravated enter dwelling with intent and larceny on 13 December 2013, he was subject to a community service order. The applicant was arrested on 9 January 2014 and was subsequently granted bail. Whilst on bail, he committed the further two offences for which he stood for sentence before the judge.

Some findings by the judge

1. The judge observed that the applicant was 46 years old.
2. Her Honour noted that his criminal behaviour commenced as a juvenile and detailed his prior criminal convictions in New South Wales and Queensland.
3. Her Honour summarised the contents of the applicant's letter and Dr Chew's report. Her Honour recounted that the applicant had left school at the age of 16, had spent his life in and out of gaol and the longest period he had spent out of custody was for 16 months when he was 40. Her Honour referred to Dr Chew's opinion that the applicant required intensive psychotherapy and residential rehabilitation.
4. The judge said that the offences of aggravated break and enter with intent of larceny were serious. Her Honour considered that the armed robbery with an offensive weapon was an extremely serious example of this type of crime.
5. In considering the guideline judgment in R v Henry (1999) 49 NSWLR 346; [1999] NSWCCA 107 ("Henry"), the judge said (ROS 22): "There is of course the guideline judgment of R v Henry to consider. I find the robbery of 4 November 2014 and the attempted robbery of 15 November 2014 clearly fall above the guideline judgment. This offender is no longer young. There was considerable planning. They were not opportunistic offences. In the actual robbery there was violence and a significant sum of money taken. The weapon used was at first thought to be a firearm. The offender has a lengthy criminal record, including offences of a like nature and he was on [conditional] liberty at the time. In respect of the attempted robbery, once again he is no longer young. There was significant planning. There was a real threat of violence. He was armed with a knife. He has an extensive record and he was on conditional liberty at the time. It was of course an offence committed in company."
6. Her Honour allowed a 10 per cent discount for the pleas of guilty for the offences committed on 13 December 2013 and a 25 per cent discount for the pleas of guilty for the offences committed on 4 and 15 November 2015.
7. The judge considered that the pleas of guilty demonstrated contrition and found that the applicant was remorseful and contrite. Her Honour said that the applicant's prospects of rehabilitation were extremely guarded given his history and found that the likelihood of his re-offending was high. Her Honour observed that the applicant had breached every form of conditional liberty that had been placed on him and that he had a significant drug addiction.
8. The judge said that in respect of each type of offence committed, general deterrence loomed large and specific deterrence had a significant role to play.
9. The judge declined to find special circumstances. Her Honour said that the length of sentence and the statutory ratio would be adequate to enable the applicant to engage in treatment regimes both in custody and upon release. Her Honour considered that there would be sufficient supervision post-release given the length of penalty to be imposed.

Ground 1: The sentencing judge erred in taking into account the applicant's prior record when assessing the objective seriousness of the offence

Argument

1. The applicant submitted that the judge has taken into account his prior criminal record in determining the objective seriousness of each offence. Whilst accepting that his record was a highly relevant consideration in the overall sentencing exercise, the applicant contended that the judge had erred as it was not relevant to the assessment of the objective seriousness of the offences.
2. The Court was referred to the following paragraphs in her Honour's sentencing remarks (ROS 20-21): "The offence of aggravated break and enter with intent and the offence of larceny were serious offences. On this occasion there was a teenager present in the house who was threatened with harm. The offender was armed with a screwdriver. The victim was assaulted when he was pushed to the bed. He was tied up and he was further threatened. A window frame was damaged in the break in. Cash and items were stolen, although the monetary value would not appear to have been significant. The offence was committed by someone with lengthy criminal antecedents, including offences of a like nature. The extent of planning however appeared limited. The armed robbery with offensive weapon offence committed on 4 November 2015 is an extremely serious example of this type of crime. The offender was armed with an object thought to resemble a handgun. That object was pushed into the victim's face. A struggle ensued between the victim and the offender which caused the victim to fall into the ground and sustain injury requiring the attendance of an ambulance. In addition to the item thought to be a handgun, the offender was also armed with a set of knuckledusters. The sum of money stolen was $10,000 and there was clearly a degree of planning involved in the robbery. The offender was waiting in the carpark for the victim. A getaway car was waiting to take the offender from the scene and the offender was armed and used a cap and glasses in an attempt to disguise his identity. It was committed by someone with lengthy criminal antecedents who was on conditional liberty at the time. The last offence in time is the attempted robbery. There was a significant degree of planning involved, the hiring of a getaway vehicle. Pressure had been brought to bear upon a co-offender to disclose information about the targeted butchery. The premises and surrounding area had been canvassed in the lead up to the planned robbery and the offender was armed with a serious carving knife. The offender was not acting alone. Jesse Kelly went into the premises with the offender and there was a getaway driver, Thomas Kelly, who had been organised to help the offenders flee the scene. There were other customers in the butchery who were clearly terrified as a result of the actions of this offender and his co-offender, in addition to employees also. The anticipated takings were significant had the robbery been successful. Once again, an offence committed by someone on conditional liberty with significant criminal antecedence. [Emphasis added.]"
3. The applicant contended that in relation to the first three offences, the references to the applicant's "lengthy criminal antecedents" appear in a list of factors supporting the finding made at the outset as to the objective seriousness of those offences. As to the attempted armed robbery, the applicant noted that the judge did not make an express finding as to where that offence sat in the range, but contended that, when read in context, it was clear that the judge was dealing with factors as to the objective seriousness of the offence when her Honour referred to "significant criminal antecedents".
4. The applicant pointed to another passage in the judge's sentencing remarks as supporting his complaint (ROS 24): "In arriving at the indicative sentences, I've had regard to the objective seriousness of the offences which I have detailed."
5. The applicant submitted that the judge was stating in this passage that earlier in the remarks, there had been an exercise where the objective seriousness of the offences had been detailed.
6. The Crown observed that the judge did not expressly take into account the applicant's prior criminal record in determining the objective seriousness of any offence. The Crown submitted that the fact that the judge referred to that consideration in a section of her remarks did not lead to the inevitable conclusion that her Honour had elevated the gravity of the offending.
7. The Crown said that at the applicant's age the principles in Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 ("Veen (No 2)") had a greater role to play and this answered the inclusion next to the listing of the objective factors, the applicant's prior criminal history. It was inappropriate, the Crown argued, to analyse the judge's remarks to any greater degree.

Consideration

1. The applicant's prior criminal history could not increase the objective seriousness of his offences. It gave rise to considerations of retribution, deterrence and protection of society: Veen (No 2); R v McNaughten (2006) 66 NSWLR 566; [2006] NSWCCA 242. It is well-established that a person's prior criminal history has no part to play in determining the gravity of an offence. Accordingly, I approach the applicant's complaint of error by her Honour, who is an experienced sentencing judge, with considerable caution.
2. It is true, as the Crown submits, that the judge did not expressly say that the criminal history was taken into account in determining the objective seriousness of any of the offences. Unfortunately, there is no reference in the judge's reasons as to the precise manner in which this factor was considered in the passages quoted at [52] above. Her Honour's failure to do so "does nothing to enlighten the sentencing process": Adegoke v R [2013] NSWCCA 193 at [35]; R v Walker [2005] NSWCCA 109 at [32].
3. The judge delivered her sentencing remarks some weeks after the proceedings on sentence. It is implicit in a reserved judgment that a judge has given consideration to all of the material placed before her. This Court is obliged to closely examine what was said by the judge, including the order in which matters are referred to, so as to discern her Honour's process of reasoning.
4. In the passages quoted at [52] above, the applicant's criminal antecedents are grouped with factors that are relevant to objective seriousness. A key to the judge's thinking is found in the assessment of the objective seriousness of the offences of aggravated break and enter with intent and larceny. The reference to the applicant's lengthy criminal antecedents is not left at the end of the factors relevant to objective seriousness but is included between "monetary value" and "extent of planning". Both of these factors are quintessentially part of an assessment of the objective gravity of the applicant's offending on 13 December 2013.
5. As to the offence committed on 4 November 2014, although the reference to the applicant's criminal antecedents comes at the end of the paragraph, which commences with a conclusion that the armed robbery "is an extremely serious example of this type of crime", I do not think that this reference can be explained by the way the sentencing remarks are paragraphed. This is a reserved judgment which her Honour has revised. In any event, the applicant's criminal history is coupled with his being "on conditional liberty at the time", which is a factor that aggravates the seriousness of the offence.
6. Later on in the remarks, her Honour states (ROS 23): "I referred earlier to the offender's lengthy criminal antecedents. This offender has manifested in the commission of these further offences, a continuing disobedience of the law in which case retribution, deterrence and protection of society indicate more severe penalties are warranted. It is clear that nothing has deterred Mr Kelly thus far."
7. In this passage, the judge gives specific attention in accordance with the principles in Veen (No 2) to the applicant's criminal antecedents in considering whether a more severe sentence was warranted. The judge's reference to these considerations detracts from the Crown's submission that in the earlier passages (at [52] above), her Honour had in mind the Veen (No 2) principles.
8. In my respectful opinion, the judge did take into account the applicant's prior criminal history when assessing the objective seriousness of the offences. As error has been established, I would uphold Ground 1 of the appeal.

Ground 2: The sentencing judge erred in her Honour's application of the Henry principle to the armed robbery and attempted armed robbery offences

Argument

1. The applicant does not complain that the judge's assessment that the offences of armed robbery and attempted armed robbery fell above the guideline judgment in Henry was incorrect. The issue is the extent to which the assessment fell above the Henry guideline. The applicant pointed to the starting point of the indicative sentence for the armed robbery being 10 years and argued that had her Honour made an assessment of the offence which took into account the lack of proof that the weapon was real and the lack of vulnerability of the victim (in the guideline judgment sense), the indicative sentence for this offence, may have been lower than it was.
2. Another matter was the judge's apparent failure to consider the distinction between the discount of 10 per cent for the plea of guilty and the 25 per cent discount that the applicant was afforded. However, as to that issue, the applicant accepted that as he ultimately received a 25 per cent discount, he had not been disadvantaged in the determination of the indicative sentence.
3. The same argument as to the plea of guilty was advanced in respect of the attempted armed robbery but the applicant recognised that he had not been disadvantaged. The applicant contended that the fact that nothing at all was taken, rather than a small amount, should have carried real weight in his favour and the indicative sentence may have been lower.
4. Another argument was that the judge may have double counted those factors that overlapped her Honour's assessment of the objective seriousness of the armed robbery and attempt offence and the Henry guideline. The applicant contended that the judge's failure to address the plea of guilty in the Henry context supported a finding that double counting as to the Henry matters relevant to the objective seriousness of the offences had in fact occurred.

Consideration

1. The applicant's assertion of error is directed towards the indicative sentences of 7 years 6 months imprisonment for the armed robbery and 6 years imprisonment for the attempted armed robbery. As this Court has emphasised, the indicative sentences are not amenable to appeal, although they may be a guide as to whether error is established in relation to the aggregate sentence: JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40]. As the applicant does not submit that the aggregate sentence is manifestly excessive, I do not understand why this ground of appeal has been advanced.
2. In any event, I am not persuaded that there was any double counting by the judge. The judge's references to the degree of planning and violence in the assessment of objective gravity of the robbery offences and in the consideration of the Henry guideline did not mean that her Honour had additional regard to these factors. Her Honour was merely providing reasons for determining that the offences fell above the guideline judgment.
3. Furthermore, it is plain that the judge took into account when discussing the Henry guideline that the weapon used in the robbery was not capable of killing or inflicting serious injury. Her Honour said (ROS 22): "the weapon used was at first thought to be a firearm". Her Honour was well aware that the pleas of not guilty to these offences had been entered at an early stage as the sentences were discounted by 25 per cent.
4. There is no merit in this ground of appeal.

Re-Sentence?

1. As error has been established, it is necessary to exercise the sentencing discretion afresh to determine whether a lesser sentence is warranted in law: Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [42]. The focus of the applicant's submission on re-sentence is that this Court should find special circumstances which the judge declined to do.
2. In my view, the aggregate sentence imposed by the judge, both in the head sentence and non-parole period, is an appropriate reflection of the totality of the criminality involved in the applicant's offending and his subjective circumstances. No lesser sentence is warranted in law.
3. I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.

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