R v Jesse Aaron Kelly

[2006] NSWDC 50

District Court of NSW|2006-10-13

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Source facts

Court

District Court of NSW

Decision date

2006-10-13

Source

Original judgment source is linked above.

Judgment (60 paragraphs)

[1]

CITATION: R v Jesse Aaron Kelly [2006] NSWDC 50 This decision has been amended. Please see the end of the judgment for a list of the amendments.

[2]

DECISION: The offender is convicted on each of the two counts in the indictment.; The offender is sentenced as follows:; On count 1 the offender is sentenced to a term of imprisonment of 7 years and 3 months commencing on 9 September 2005 and expiring on 8 December 2012, with a non-parole period of 4 years and 6 months expiring on 8 March 2010.; On count 2 the offender is sentenced to a term of imprisonment of 7 years and 3 months commencing on 9 September 2006 and expiring on 8 December 2013 with a non-parole period of 4 years and 6 months expiring on 8 March 2011.; There is a partial accumulation of 12 months, giving a total effect of 5 years and 6 months non-parole imprisonment. The balance of the term will be 2 years and 9 months.; On the offender's release to parole I recommend that the authorities impose conditions that:; He be of good behaviour for the period of his parole;; That he comply with all directions of the Probation and Parole Service as to: His residence; His associates; Any courses as to drug and alcohol counselling that may be recommended.; I dismiss the back up charge of negligent driving causing death under s.167(a) of the Criminal Procedure Act 1986 as well as the related charge of failing to stop after an accident.; The offender is convicted of the charge on the s166 certificate of take and drive conveyance without consent (seq 6) and is sentenced to a term of 12 months imprisonment. On the charge of drive while suspended (seq 7) he is sentenced to a term of 12 months imprisonment. The sentence on each count is to be served concurrently with the term to which he has already been sentenced, to date from 9 September 2005.; I impose a period of disqualification from driving for a period of three years to commence from today pursuant to S188(2)(d) of the Road Transport (General) Act 2005.

[9]

4 The agreed facts were set out in exhibit S2. 5 In brief, the police received information that a car had been stolen on 21 or 22 February 2005 from a home in Oyster Bay. The vehicle involved was a new Holden Commodore sedan being leased from Motors Car Rentals. 6 Intelligence gathered pursuant to a listening device warrant obtained in relation to premises at Macquarie Fields was obtained by the Police. 7 At about 11pm on Tuesday 25 February 2005 two police officers were patrolling in Macquarie Fields. They turned right into Eucalyptus Drive and almost immediately the white Holden Commodore Sedan drove out of a side street to their right followed by an older maroon coloured Ford sedan. The police, who were following in an unmarked police car, were able to establish it was the white Holden Commodore sedan which had been stolen from Oyster Bay. 8 When the cars came to the end of Eucalyptus Drive to turn into Rosewood Drive, Macquarie Fields neither were travelling at any more than the designated speed limit of 50km per hour. 9 The stolen Commodore turned into another part of Eucalyptus Drive and the Police then activated the Police vehicle siren and flashing lights. 10 The stolen Commodore immediately accelerated and police notified the authorities that they had commenced a pursuit. The car continued to accelerate with the police vehicle doing likewise. 11 Approaching the kerb on Eucalyptus Drive, the car began to slip and left tyre marks on the surface about 15 metres past the intersection of Melia Place. The near side wheels collided with a heavy concrete pedestrian refuge island on the left hand northern side of Eucalyptus Drive. A posted traffic sign on the island was struck and the car continued in an easterly direction where the nearside wheels again came into heavy contact with the concrete kerb. At that stage the Commodore was out of control and slammed into a large eucalyptus tree located just behind the concrete kerb. The car was crushed by the tree and partially wrapped around it. There was massive impact damage occasioned to the car as is demonstrated by the tendered photographs.

[10]

12 In the front seat of the car was Matthew Robertson. Partially obscured in the near kerbside seat was DR. Both died immediately or shortly thereafter. 13 Police then approached the sedan and saw the driver's door was open. A person, presumed to be the driver, was running away from the scene. That person ran into the property and scaled the fence. The police then received a message from a Police Officer manning a listening post who told him that a person identified as the offender had just re-entered the house at 33 Cottonwood Crescent. He was heard to be breathing heavily and puffing. A large number of Police and other emergency vehicles then convened on the scene. 14 At about 3:17am on 26 February the offender was heard on a recorded conversation saying to his aunt "I just lost it". 15 In later conversations the offender said "if I knew how the boys are I would've stayed there". "I was just talking to 'em, I just, I'm still thinking about things, like D... (DR) telling me to slow down bro, slow down, in the back of the car, bro and I didn't know if he had a seat belt on or not bro" and "… I thought you were behind us and the Magna turned off and then youse turned off and the Magna stayed behind us, then fucken they put the sirens on just before… Rosewood. I just turned left and right and fucken just took off around euco and I just kept it flat. They were up my arse the whole way and fucken I was going around. I was skipping bro, skipping, skipping and all of a sudden the car stopped steering. It just stopped steering bro." 16 On 9 August 2005 a DNA swab of the blood stain taken from the driver's side air bag revealed a DNA profile similar to that of the offender. That DNA occurred in approximately 1 in 2.2 billion individuals in the general population. 17 The offender remained at large and continued to elude police until 9 March 2005 when he gave himself up to police at the Campbelltown Police Station. The offender declined to be electronically interviewed. 18 In the intervening period, other events occurred. I emphasise that the offender is not being sentenced for, or by reference to, any of those matters. 19 The offender was the holder of a provisional license which had been suspended on 26 April 2004 due to a fine default. 20 Photographs were tendered (S5) showing the roadway, the skid marks, and the damage to the Commodore and its position in relation to the tree into which it had crashed. 21 A certificate from Sergeant John Kelly of the NSW Police Crash Investigation Unit was tendered (S6). Sergeant Kelly's conclusion was that the Commodore speed at the point of recording the yaw mark would have been most likely more than 120 km per hour, not less than 110 km per hour and not more than 140 km per hour. As discussed during the course of submissions, there does not seem to be any evidence in his report to support other than a finding that it is most likely that the speed involved was more likely to be 120 kph. The speed limit in the area was 50 kph.

[14]

32 A report from Messrs Duffy Barrier Robilliard, Psychologist, was tendered (S11). That report dated 18 September, 2006 indicated the offender has had two daughters, Sasha and Holly. 33 The report also provided information about his family background and insight into the circumstances of his formative years. The offender identifies his step-father, Shane Kelly, and Shane's relatives as his own extended family. 34 The offender said that his mother was a chronic gambler who could lose the entire salary of the offender's step-father in a day. She was also a drug user and both parental figures were heavy drinkers. Adolescent background and education 35 The offender said that he seldom went to school as he never had appropriate clothes or equipment and there was no food for lunch. By early adolescence he had been expelled from the public school system and placed in a special school for behaviour disorder children. 36 He then went to live with his maternal grandmother at Macquarie Fields and attended the local school. He lived there with his grandmother and a person called 'Pop' who was apparently his grandmother's partner. The offender said that his mother did not know who was her birth father. 37 The offender subsequently went to the Macquarie Fields High School in year 7. He was then expelled and sent to Campbell House, a special school for behaviour disorder children in Campbelltown. He said he was seldom there and smoked a lot of pot. From time to time he slept at his uncle's place. At that time he said he learnt how to commit break and enters. 38 All the evidence as to his background explains, but does not excuse, his attitudes to the police and to the law generally. Relationships 39 Subsequently, his mother separated from Mr Kelly and the offender's mother started to live alone in a housing commission accommodation at Ingleburn. 40 At age 14 the offender formed a relationship with a girl called Melissa who is 12 months younger than he was. Melissa apparently lived two doors away. That relationship was inherently unstable and emotionally intense. Melissa fell pregnant and they moved into a caravan at the back of her parent's home. Their daughter Sasha was born when Jesse was 17 and the second daughter, Holly, was born 12 months later. That daughter died within 48 hours of her birth. The offender was devastated and the young couple split up about two months later. There was a subsequent brief and volatile reconciliation which lasted a couple of months. Apparently Melissa's mother, Ms Bailey, brings Sasha to visit the offender in custody. Sasha lives with Ms Bailey. 41 Evidence was also given by Ms Jeanette Bailey the mother of his former partner, Melissa, and the grandmother of his child, Sasha. Ms Bailey said that the offender could stay with her after his release from custody. She said that she would assist him in attempting to find work and in his relationship with Sasha. She said that she was aware of his drug usage. It was unclear to me what steps or strategies would be adopted to deal with any recurrence of that drug usage while the offender was living with or near her. 42 At the time of the offence the offender was occupying rented accommodation in Macquarie Fields - which he went to immediately after the crash.

[18]

50 A letter from the offender to the court was tendered (S 12). The letter confirms the matters set out in the psychologist's report which I have made earlier reference. The letter also makes specific reference to the fact that he did not know that the two young men who were the passengers in his car were even hurt and that had he known that he would not have run from the scene. He said that he ran away from the car because he was panicking, expecting his friends to be close behind him. He said he had no idea his friends had been fatally injured and would not have left the scene had he realised that fact. It seems to me to be clear that he would have known soon afterwards that they were killed. 51 The report also notes that the offender did not want to implicate or blame anyone for his direction in life or his conduct. He admitted that he was avoiding any attempts to control or discipline him by his early or mid adolescence. 52 He said that he faced "an extraordinary level of pressure to shift blame from himself to the Police which he resisted". 53 The report states that the offender did not express resentment, hostility, or anger towards anyone and he made deep and heartfelt statements of empathy for the victims family and his own. He is said to have "accepted total responsibility for the offences and will not blame or implicate anyone or anything from his past nor the circumstances of the incident itself". 54 He has said that he no longer has friends in Macquarie Fields and has no intention of ever returning there. He intends to move near the south coast to be near his mother-in-law, Ms Bailey, who he identifies as the most positive and sensible influence in his life. 55 The offender said he is anxious to avoid media attention which he said will be stressful and very unwelcome. The report notes that he will need support from the Probation and Parole Service. The report also notes that relocating away from Sydney is therefore a sensible plan on his part - a sentiment with which I completely concur.

[22]

68 It was clear that the offender had bruising to his eyes consistent with having been struck or having struck something. There were no other injuries consistent with his accounts of having been slapped to the face 20 times or more or punched in the ribs. 69 In the circumstances where I am left with that evidence, the account does give rise to some concern. However, the offender has the remedies and procedures open to any inmate within the correctional system. 70 It is clear that the offender has come to the attention of the correctional authorities. Whether that has been in response to the circumstances surrounding this incident, as was submitted on his behalf, or the fact that he has had convictions within the corrective services system for drug related matters in the preceding months, I do not find it necessary to determine. 71 On the basis of the evidence available to me the only finding that I can, and need, to make is that the offender will continue to serve his sentence in protection and that it is likely to be of some hardship to him. But the evidence does not persuade me that that incarceration will be any more difficult than for any other offender who has the record of offences he has attracted while he has been in custody and who is on protection. I will take that matter into account in my assessment of what special circumstances there are and the adjustment to the statutory ratio should be made. Consideration of matters of aggravation 72 This case raises some for consideration different matters which may be considered as matters of aggravation in the different senses that term is used in section 21A of the Crimes (Sentencing Procedure)Act, 1999, the factors referred to in the relevant guideline judgments of Whyte and Jurisic, as well as the fact that the offender is being sentenced in relation to an offence which as an aggravated offence under section 52A (2) of the Crimes Act. It is important to keep those separate matters in mind when considering the evidence and the final exercise of the sentencing discretion, particularly to ensure that there is no degree of double counting of factors or the evidence which would result in an inappropriate sentence. There is also the related need to ensure that matters which are an inherent part of the elements of the offences are not taken into account as a potential double-counting. Aggravating factors - s21A Crimes (Sentencing Procedure) Act 1999

[47]

120 The offender has shown a degree of insight into the fact that he was manipulated by other people in the events subsequent to the actual incident. That would suggest that there are some, though in my view limited, prospects of rehabilitation. That fact, his age (now 21), his background, and the fact that he and the fact that this will be his first time in custody for an extended period, and that is likely to be in circumstances where he is on protection, in my view constitute special circumstances. 121 The offender's plans for employment given his intention to relocate to the South Coast of NSW seem to be poorly thought through - for example, in relation to the suggestion of employment from his father who is located in Sydney and who he has had little contact. Ms Bailey, though undoubtedly well-motivated, was also available to the offender at the time of the offence and his life prior to the offence. She obviously had little impact on him at that time. All the other people who are said to be his supporters did not appear to be able to do much to keep him out of the pattern of serious misbehaviour that he had got into and which ultimately led to the deaths which occurred which had such an impact in this community. 122 I see little in the evidence and the offender's background which would warrant any real measure of confidence that he will be able to desist from his behaviour patterns to date. Having considered the nature of the special circumstances I have found and all the evidence, including the evidence in the psychologist's report as to the prospects of rehabilitation which I have reviewed against my own assessment of the offender's evidence to me and that of Ms Bailey, I find that there are limited prospects for rehabilitation. I do not find that those circumstances warrant other than a slight adjustment to the normal statutory ratio. 123 The appropriate ratio which the non-parole period should bear to the parole period under supervision should be reduced from the statutory ratio to one of about two thirds.