18 December 2007
Robert KELLY v THE QUEEN
Judgment
1 BASTEN JA: On 7 December 2006 the applicant, Robert Kelly, was sentenced on two charges arising out of conduct committed at his former matrimonial home, in Lake Cathie. Pursuant to consent orders made in the Family Court on 16 February 2006 the property had been transferred to his wife as part of a settlement upon divorce under the Family Law Act 1975 (Cth).
2 The offences arose out of an incident on the evening of 19 July 2006 at approximately 8.45pm. The more serious offence involved Mr Kelly, whilst armed with a rifle, breaking and entering the dwelling house at Ernest Street, Lake Cathie and committing the serious indictable offence of intimidation, contrary to s 112(3) of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of 25 years imprisonment and was subject to a standard non-parole period of 7 years. The applicant was sentenced to imprisonment for 4 years, comprised of a non-parole period of 2 years and an additional term of 2 years. He also pleaded to a lesser charge of malicious damage to property, an offence carrying a maximum sentence of 5 years imprisonment under s 195(a) of the Crimes Act. On the lesser offence he received a sentence of 3 months imprisonment, to run concurrently with the longer sentence, each to commence on 20 July 2006.
3 The applicant's case was that his sentence on the more serious matter was excessive and that a non-parole period of 1 year was the maximum sentence warranted in law. Such a sentence would have expired on 19 July 2007. The present application was filed on 28 August 2007. Despite the requirement of the rules that an application for leave to appeal should be filed within 3 months after the sentence (see Criminal Appeal Rules, r 3B) there was no explanation as to why it took more than 8 months in the present case to file an application for leave to appeal identifying a single ground of appeal, namely that the sentence was "manifestly excessive". Apart from noting that the significant lapse of time did not arise within the Court, that aspect of the matter need not be addressed further.
The Facts
4 Before turning to the incident the subject of the charges, it is convenient to note some of the preceding events. The applicant and his wife separated in 2004, for reasons which were not explained at the hearing on sentence, but appear to have involved his problems with abuse of alcohol. There was, however, no evidence of domestic violence.
5 A report from his general practitioner, Dr Evans, indicated that on about 28 May 2004 he had been diagnosed with abnormal liver function, caused by alcohol abuse. Dr Evans reported:
"His wife left him in December 2004, and following this he began drinking more heavily and was not coping. He became depressed and suicidal over the period of 19th March 2005 - 22nd May 2006 and continued to drink."
6 According to a report from the North Coast Area Health Service he attended as an outpatient at the detoxification unit of the Port Macquarie Community Health Centre from 12 August 2005 to 12 April 2006. It appears that he then attended a final "detox" session at Wauchope District Hospital and moved to live with his mother on the south coast whilst awaiting admission to a drug and alcohol rehabilitation centre. The Port Macquarie Community Health Centre report of 30 November 2006 indicated that their last contact with him was in April 2006.
7 It appears that he then spent six weeks on the south coast, which Dr Evans thought was prior to his admission to Wauchope Hospital on 22 May 2006, but may have been thereafter. Doctor Evans said that she last saw him on 5 July 2006 at which stage "he claimed he had not been drinking for seven weeks and claimed he had a 'setback' the previous evening after seeing his wife over money issues". The consultation on 5 July was 14 days before the incident which gave rise to the charges.
8 According to the facts presented by the prosecution on sentence, the applicant was on the south coast between April and July 2006. When he returned to Lake Cathie he was informed of a new relationship involving his wife and told her: "That is fair enough. That is none of my business." The facts continued:
"However, for the next several days the offender kept returning to Mrs Kelly's home wanting to talk about their relationship, with her telling him that there was nothing to talk about, as it was over. On one occasion the offender had a heated argument with Mrs Kelly and his son and was told to leave the premises."
9 The facts also stated that the applicant met his former wife on 14 July 2006, at his request, at which time she sought to reinforce her position that their relationship was over. She changed her telephone numbers later that day, from which it may be inferred that his contacts were viewed by her as a significant nuisance. The applicant apparently visited the former matrimonial home on several occasions over the next few days. Nevertheless, despite the reference to a "heated argument" and the changing of the telephone numbers, there was nothing to suggest that Mrs Kelly feared violence from the applicant at that stage.
10 When the applicant arrived at the Ernest Street premises on the evening of 19 July, Mrs Kelly was at home with their 20 year old son, David, a next door neighbour, Mrs Kerry Smith, and a Mr Michael O'Donnell, whose vehicle was parked in the driveway.
11 At some stage on that evening (the time not being revealed by the evidence) the applicant went to a friend's home and "asked to borrow a rifle to go shooting". The statement of facts continued:
"He was informed by his friend, who held a firearms licence, that he only had available a .22 calibre single shot rifle, which he showed the offender how to operate, including safety mechanisms. He offered the offender a full box of bullets, but he declined, instead taking a box containing only 8 rounds."
12 There was no evidence from the friend as to the applicant's apparent state at the time he borrowed the rifle. The applicant did not give evidence. As will be seen, by the time he reached Ernest Street (an unknown distance from the friend's home) he was in a state of blind fury. There is no evidence as to whether or not he had been drinking on that day, but no witness to the incident suggested that he was inebriated. Certainly there is no statement in the facts to that effect.
13 The events of the evening of 19 July after the applicant arrived at Ernest Street were set out in the following paragraphs of the Facts on Sentence:
"4. … He proceeded to smash all the windows of Mr O'Donnell's motor vehicle, which was parked in the driveway of Mrs Kelly's home, and then went to the front door. Mrs Kelly answered his knock and opened the glass front door and spoke to him through the unlocked screen door. The offender asked if David was there, as he wished to speak to him. Mrs Kelly told the offender she would go and ask David if he wished to talk to him, and saw that he had a rifle, which he pointed at her. The offender opened the screen door and Mrs Kelly screamed, jumped back, slammed the front door and locked it. Mrs Kelly rang 000 and screamed out to the other occupants of the house, 'He's got a gun'. The offender then began kicking the door, but was not enable [sic] to gain entry.
5. The next door neighbour, Allan Smith, had approached the offender and said, 'What are you doing?' The offender said, 'I've got no problem with you'. Mr Smith said, 'Don't be stupid'. The offender said, 'Go away', and continued to bash the door with the butt of the rifle. Mr Smith said, 'Let me get my wife out'. The offender said, 'Yeah I know Kerry's in there. I don't want to hurt her'. Mr Smith said, 'Now piss off and get out of here'. The offender then smashed the glass sliding window of the living/dining room with the butt of the rifle, and pushed the barrel through waving it into the room. He pointed it at David Kelly who, terrified he may be shot, called out to the offender, 'Dad, it's me, don't shoot'. The offender moved the barrel away from him but continued to search the immediate area of the room with the rifle. Mrs Kelly screamed from her position for those inside the house to get out. Mrs Smith was screaming for Mr Smith to get her. David Kelly, Mr O'Donnell and Mrs Smith left the house by the rear glass sliding door in to the backyard. Mr Smith ran to the side of the house where Mr O'Donnell assisted him to lift Mrs Smith over the dividing fence. Mr Kelly and Mr O'Donnell also jumped the fence and went inside the Smith's home. Mr Smith had to pacify Mrs Smith, as she was extremely shaken.
6. The offender then returned to the front door and smashed the glass panel at the side of it with the rifle butt, reached in and unlocked it. He then entered the house, went to the kitchen where Mrs Kelly was on the phone, and pointed the rifle at her face. Mrs Kelly said, 'Bob, please don't', and could see the offender was in an enraged state. She pushed the barrel away from her face on two occasions and the offender ripped the phone from the wall. He then walked towards the rear sliding door and Mrs Kelly ran into the next door neighbour's house and hid. The offender then went to those premises where he was met by Mr Smith at the front door, who said to him, 'Don't touch anything on my house'. The offender said, 'I've got no problem with you'. Mr Smith said, 'Just piss off and go'. The offender went back into Mrs Kelly's home for a short time and then drove away in his motor vehicle. About 5 minutes later he drove past the house and again drove away."
14 The Statement of Facts further noted that the applicant had returned the rifle to his friend, apparently that evening. Again nothing was said about his state, other than that there was blood on the stock and he had a rag wrapped around his right hand. The rifle had apparently been damaged in the assault on the car or the front door, with the result that the rear of the bolt had been bent and the firing mechanism jammed.
15 Curiously, the facts stated that the friend had "noted that the bolt was closed and pulled back to the rear", but did not indicate whether there was a round in the breech. Nor was there any evidence as to whether the other rounds were returned. It is difficult to believe that the police would not have sought to determine if the gun were loaded when it was returned. It is difficult to understand why the Court was invited by the Director of Public Prosecutions to sentence the applicant without information in that regard.
16 On 22 September 2006, the applicant saw a Mr John Nolan, psychologist, in Port Macquarie. He apparently told Mr Nolan that he "had no memory of the event and that he is still confused over what he was said to have done". Whether he in fact had no memory, or did not wish to discuss the events with the psychologist, is not known. A number of these matters could have been clarified, no doubt, by the applicant, had he given evidence: he did not do so.
17 Statements were obtained from eight residents of Lake Cathie who knew Mr Kelly, and from his daughter and his sister. Apart from the members of his family, only one of the friends referred to his drinking. None suggested that he had no memory of the events and several suggested that he had given them some explanation and indicated remorse. He also indicated remorse to the psychologist.
18 There were references in a letter written by his sister (though not in that of his daughter) to a history of accidents some of which involved head injuries. Mr Nolan (psychologist) also referred to an account of a head injury in 1999 and to the possibility of "cognitive deficits", for a person who had been "drinking alcohol at levels similar to Mr Kelly". However the latter appears to have been speculative: Mr Nolan spoke with Mr Kelly for one hour in the cells at Port Macquarie Court House on 22 September 2006 and noted in his report that he had not had the opportunity to interview him in depth or conduct any psychometric or other tests. Doctor Evans noted that she had "no documentation with respect to a head injury or headaches". Accordingly, it was appropriate for the trial judge to sentence him on the basis of normal cognitive capacity.
The Sentencing
19 In imposing a sentence of 4 years imprisonment with a 2 year non-parole period for the charge of breaking and entering a dwelling house and of intimidation, Garling DCJ noted that the offence carried a maximum sentence of 25 years imprisonment, with a standard non-parole period of 7 years. The standard non-parole period did not apply on a plea of guilty, which had been entered at the earliest opportunity. However, his Honour also held that the case did not fall into "the mid-range category of seriousness of these types of offences". That was because his Honour had concluded that there was not "the slightest evidence before me he was going to do anything more than terrify these people". It may be added that the offence covers an extensive range of offences, described as "serious indictable offences", being any indictable offence punishable by imprisonment for life or for more than 5 years: Crimes Act, s 4. Intimidation was but one example.
20 The finding that the applicant intended only to intimidate was open and, no doubt, appropriate in the circumstances. Nevertheless, the fact that he took eight rounds of ammunition might have suggested that he went to the house having given himself the means by which he could at least discharge the rifle. It may be accepted that the gun was not loaded, a matter about which his Honour made no express finding, but was the basis on which he proceeded to sentence.
21 His Honour also made no finding as to the applicant's state of mind at the time of the incident. Whether through anger or alcohol, a matter about which there was no evidence, his conduct sufficiently demonstrated that he was in a violent and angry state of mind. (Mrs Kelly described him as being "in an enraged state".)
22 His Honour described the combination of the event and the character of the prisoner as "amazing" and "incredible". It might more aptly have been described as saddening. The applicant was a 50 year-old man, with no relevant prior criminal record and was a person who was apparently well thought of in the community. The medical evidence demonstrated that he had a problem with alcohol abuse, which may have caused the breakdown of his marriage. A combination of alcohol abuse and anger is not unknown.
23 The evidence in the letter from Dr Evans suggests that he had had some success in overcoming his alcohol problem, prior to living for six weeks on the south coast, but had had a relapse after returning to Lake Cathie. That must have been during the period, some days before the incident, when he contacted his former wife on a number of occasions. The inference may be drawn that the break-up of his marriage was for him still an unresolved tragedy in his life.
24 The difficulty for the trial judge was that he had no evidence before him as to the applicant's explanation for the events of the evening, nor any evidence that the applicant had insight into the causes of his behaviour. His Honour stated (p 5):
"It is imperative that the prisoner successfully resolve his heavy, uncontrolled drinking behaviour but he has a good prognosis for recovery if he receives treatment for the depression and alcohol abuse. He does not have a history of violence or aggression. He has had a series of relationship and family stresses. He suffered depression. However, he should be able to be rehabilitated from his alcohol problems."
25 His Honour also took the view that his expressions of remorse were based on the fact that "he still cared for his wife". No doubt he did: however, there were also undoubtedly other feelings involved. His Honour, correctly, noted that general deterrence was a significant consideration in sentencing for conduct of this kind: Judgment, p 6. He also placed weight upon the element of personal deterrence, stating (p 5):
"Giving an opinion on the risk of re-offending [Mr Nolan] would rate it as low to medium based on the information currently available. It would be low if he abstained from drinking, however, if he did not, he could very well offend again."