R v Kelly

ee, including, but not limited to, psychological or other counselling, rehabilitation and/or educational programs, place of residence and/or employment. In respect of the trespass and stealing charges, there will be convictions recorded without further penalty. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) ) AUSTRALIAN CAPITAL TERRITORY ) ) DISTRICT REGISTRY ) ) GENERAL DIVISION ) ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY No. ACT G4 of 1995 BETWEEN: JASON ALLAN DOUGLAS Appellant AND: THE QUEEN Respondent No. ACT G6 of 1995 BETWEEN: ANTHONY JOHN ALBONE Appellant AND: THE QUEEN Respondent CORAM: von Doussa, Higgins and Nicholson JJ PLACE: Canberra DATE: 4 April 1995 REASONS FOR JUDGMENT THE COURT: These are appeals from sentences imposed on the appellants on 20 December 1994 by his Honour Justice Gallop in the Supreme Court of the Australian Capital Territory. The appellant, Jason Allan Douglas (Douglas), pleaded guilty to three counts, alleging that on 1 May 1994, he: ...intentionally and without lawful excuse did destroy by means of fire, property, to wit, a 1980 Subaru Leone sedan bearing ACT registration YMZ238 belonging to Kathleen Mary Johnston. ...did enter a building, to wit, 42 Ebden Street Ainslie as a trespasser with intent to steal therein. ...did steal 1 Phillips brand colour television of the value of $300 belonging to Kathleen Mary Johnston. He also asked that seven other offences, being three burglaries and associated thefts and an attempted burglary committed on 1 and 3 May 1994, be taken into account. The other appellant, Anthony Albone (Albone), pleaded guilty to 14 counts, alleging that on various dates between 4 April 1994 and 17 May 1994, he: ... intentionally and without lawful excuse did destroy by means of fire, property, to wit, a 1980 Subaru Leone sedan bearing ACT registration YMZ238 belonging to Kathleen Mary Johnston. ... did enter a building, to wit, 42 Ebden Street Ainslie as a trespasser with intent to steal therein. ...did steal 1 Phillips brand colour television of the value of $300 belonging to Kathleen Mary Johnston. ...did enter a building, to wit, 4 Stuart Street Griffith as a trespasser with intent to steal therein. ... did steal 1 Mitsubishi brand VCR and 1 Olympus brand camera of the value of $1400 belonging to Josephine Whitton. ... did enter a building, to wit, 29 Derwent Street Lyons as a trespasser with intent to steal therein. ... did steal 1 gold bracelet and 1 Nikon camera of the value of $1700 belonging to Rhonda Lipton. ... did enter a building, to wit, 50 Derwent Street Lyons as a trespasser with intent to steal therein. ... intentionally and without lawful excuse did destroy property, to wit, 1 glass window panel forming part of the premises at 50 Derwent Street Lyons belonging to Anabelle Walters. ... did enter a building, to wit, 3 Moorehead Street Curtin as a trespasser with intent to steal therein. ... did steal twenty five dollars cash monies belonging to Tanya Stackpool and Sherif Eldin. ... did enter a building, to wit 2 Marawa Place Aranda as a trespasser with intent to steal therein. ... did steal 1 Sanyo brand cassette recorder and 50 assorted compact discs of the value of $1500 belonging to Kylie Naveau. ... intentionally and without lawful excuse did destroy property, to wit, 1 glass panel forming part of the premises at 2 Marawa Place Aranda belonging to Kylie Naveau. The first three offences alleged against both Douglas and Albone were committed by them in company with each other and two juveniles. The four other incidents giving rise to the remaining 11 counts against Albone were committed by Albone alone. The four incidents giving rise to the seven additional offences admitted by Douglas were allegedly committed in company with Albone. Albone requested that those and a further six offences be taken into account. The facts relating to the arson offence were that on Sunday, 1 May 1994, the appellants, with the two juveniles, entered the premises mentioned. The occupant of the premises, Kathleen Mary Johnston, was a widow, 81 years of age and had lived at the address for 47 years. She was absent on holidays. The offenders located and used a key to effect entry. A quantity of food and a television set were stolen. Albone found the keys to a 1980 Subaru Leone (registration no. ACT YMZ238) which was parked in the garage attached to the premises. The vehicle was then driven away by Albone in company with the other three offenders. The stolen property was taken away in the vehicle. Before leaving the premises, in an act of wanton destruction, Albone poured a quantity of Bailey's Irish Cream over the lounge room furniture and carpets. The value of the damage was $200.00. After removing the stolen property from it, the vehicle was driven to Stromlo Forest. On the way, Albone discussed burning the vehicle to prevent fingerprints being located in it. Once in the forest, all offenders except Albone alighted from the vehicle. Albone then drove the vehicle into various trees finally hitting a tree stump head-on. With the vehicle rendered inoperable, Albone set fire to cloth and paper placed inside the vehicle's petrol tank. The other three offenders watched this, although Douglas conceded that he tore up some paper to assist Albone in burning the car. The vehicle was destroyed as a result. It was valued at $2,800.00. The television set was recovered. The loss of the vehicle and the intrusion into her home in her absence caused considerable shock and distress to Mrs Johnston. When apprehended and questioned, Douglas made full admissions to police. Albone, though admitting all other offences, initially denied that he had participated in the arson offence. Douglas offered to give evidence against Albone. Indeed, he gave evidence on 14 December 1994 when arraigned for sentence which evidence clearly implicated Albone. Shortly after Douglas gave that evidence, Albone agreed to plead guilty to the charge of arson. It is not entirely clear whether the appellants volunteered information as to their own participation in offences not up until then known to police but it can be assumed that some of the offences admitted were in that category. As at 14 December 1994, Albone had spent 22 days in custody. Both appellants were, on 14 December 1994, remanded in custody until sentenced on 20 December 1994. The learned sentencing judge adopted the view that Albone's culpability in relation to the arson was greater than that of Douglas. This was a conclusion clearly open on the evidence. The appellant Douglas, at the time of the offences, was just 18 years of age (dob 5.3.76). His Honour dealt with him in the following terms: I turn to the subjective factors in relation to the accused Douglas. He was born on 5 March 1976 in Liverpool, New South Wales, which means that he was just 18 years of age when he committed these offences in May this year. He was a constant problem throughout his schooling and was finally expelled in year 9 for truancy. He had not been attending school because he did not want to. He attained no educational certificates. Throughout those years and since, he has been supported by his father who gave evidence on his behalf. Notwithstanding being a burden to such an extent that it would be understandable if the father withdrew his emotional and financial support the accused Douglas simply continued to make trouble and be a constant nuisance in the community. Drugs, of course, are blamed by him for his constant failure to obtain an education and later to maintain a job. In the course of this sort of behaviour, of course, he picked up some convictions in the Childrens Courts of New South Wales. On 6 April 1992 in Condobolin Childrens Court he was found guilty of an offence of stealing. On 3 May 1993 in Queanbeyan Childrens Court he was found guilty of break, enter and stealing, given two years probation and 50 hours community service work. So, he was on probation from the Queanbeyan Court when he committed these offences in May this year. He took no account of that circumstance when he committed all these offences. The pre-sentence report before me is to the effect that Douglas appears to feel some remorse for his offending and he expressed those feelings in evidence. He seems to have suffered a particular pang of conscience about Mrs Johnston. I accept that. He completed 50 hours of community service in Queanbeyan satisfactorily. He visited Goulburn Gaol since the commission of these offences and he is particularly worried about a prison sentence. At the time of the offences he had been living in a halfway house and other accommodation provided for him and his co-offender Albone at the community's expense. But instead of capitalising on that sort of assistance and his father's support he simply let others persuade him to commit a series of property offences of a very serious nature. The offences are so serious that notwithstanding everything that has been put on his behalf by his counsel Mr O'Donnell no further leniency can be extended to him, at least not to the extent that a non-custodial sentence could be imposed. I propose to sentence the accused Douglas to a term of imprisonment and fix a non-parole period. I am satisfied that no other punishment is appropriate in all the circumstances, having regard to the seriousness of the offences to which he has pleaded guilty and taking into account the offences on the schedule. That means that he will serve some time in gaol and if he earns parole he will then be released on a parole order. He will be out in the community on a parole order which will have conditions attached to it. If he breaches those conditions the parole order will be revoked and he will go back to prison to serve the unexpired portion of his gaol sentence. In respect of the offence of destroying Mrs Johnston's car by fire I sentence the accused Douglas to three years imprisonment. In respect of the offence of entering Mrs Johnston's house as a trespasser with intent to steal I sentence him to 12 months imprisonment. In respect of the offence of stealing the television I impose a sentence of 12 months imprisonment. All sentences to be concurrent. He has spent no time in custody in relation to these offences, except from 14 December 1994. I fix a non-parole period of 15 months. The head sentences and the non-parole period will date from 14 December 1994. Remove the prisoner Douglas. The appellant Albone, at the time of the offences, was just 19 years of age (dob 1.3.75). His Honour sentenced Albone in the following terms: ... He too was receiving community support from ACT welfare authorities at the time he committed these offences. The pre-sentence reports demonstrate that he has been a problem for his parents and welfare authorities throughout his life. He claims to have a long history of abuse of cannabis and alcohol and now wishes to be drug free. He ultimately appeared for sentence unrepresented. He is described as having a pervasive sense of sadness as well as being angry and self-destructive. I am satisfied on the evidence that he was more culpable than the accused, Douglas, and the other co-offenders in relation to the burglary of Mrs Johnston's premises and vandalising her home and car. I see very little prospect of a useful existence for the accused, Albone. I think he is likely to offend and re-offend for the rest of his life unless he himself is able to make a change. He is well entrenched in his criminal activities and I agree with the assessment of Dr Knox, consultant psychiatrist, who examined the accused, that there is not very likely to be a quick change of behaviour on the accused's part, no matter what guidance and counselling he is offered. I doubt whether he will ever accept the advantages of applying his intelligence and energy productively within society. I think he will always prefer to be destructive and selfish. In relation to the offence of destroying Mrs Johnston's motor car by fire, I sentence the accused to five years imprisonment. In relation to the second and third counts relating to the burglary and stealing from Mrs Johnston, I impose sentences of 12 months in each case to be served concurrently with the first sentence. In relation to each of the other offences set out in the indictment and to which the accused pleaded guilty; being burglary, theft and damaging property, I sentence the accused to 12 months imprisonment on each count, all to be served concurrently and concurrently with the five year sentence in relation to the destruction of the car by fire. I fix a non-parole period of two years, six months. The head sentences and the non-parole period will date from 24 November 1994. Remove the prisoner, Albone. There was, as his Honour had noted in argument, a considerable difference in the criminality exhibited by Albone as opposed to Douglas. That alone justified a lesser sentence being imposed on Douglas than upon Albone. In addition, Douglas appeared genuinely remorseful, had pleaded guilty at the earliest opportunity and had cooperated fully with police. Indeed, his cooperation extended to implicating a co-offender. Such cooperation warrants, at the least, a considerable discount in sentence: see R v Kelly (1993) 113 ALR 535, 540-2 per Mahoney JA.