Peter Kelly appears for sentence in respect of the single offence, being commit a s 114 offence, that is enter land with intent to commit a serious indictable offence, having a previous conviction for a serious indictable offence, contrary to s 115 of the Crimes Act 1900. The maximum penalty provided is ten years' imprisonment and there is no relevant standard non-parole period. He asks when being sentenced in respect of that matter to have a further offence of common assault, contrary to s 61, taken into account pursuant to a Form 1. Common assault, when dealt with separately, has a maximum of two years' imprisonment.
The offender is 43 years of age. He was committed for sentence on 12 February 2020 from the Burwood Local Court and is entitled to 25% discount for the utility of the plea alone. Such a discount will be provided. The offence occurred on 3 May 2019 and he was arrested on that date. However, as he was on parole at the time his parole was subsequently revoked from that date, the balance of term being due to expire on 29 May 2020. During that period of serving the revoked parole he was also sentenced in respect of another offence, being a term of imprisonment imposed of six months to commence on 30 May 2019 and expire on 29 November 2019.
The facts have been agreed and are as follows.
At approximately 11pm on Thursday, 2 May 2019, Ms Li and Mr McGee were in their home at Third Avenue, Campsie.
Their unit was a two-storey townhouse with a small balcony connected to the master bedroom upstairs at the front of the property. Before going to sleep the victims left their glass sliding door to the balcony open and their flyscreen door closed.
At about 3.30am to 3.45am on 3 May 2019 one of the victims heard a sound on the balcony, Ms Li, saw the offender through the blinds and flyscreen on the balcony. She woke her partner, Mr McGee, who turned on the bedside light and got out of bed and walked towards the balcony door.
He noticed the offender falling backwards off the left-hand side of the balcony from a height of about 3 or 4 metres. He then observed the offender lying face up on the ground near some drops of blood. He also observed damage to the right side of the lattice fence and parts of the balcony railing, which appear to have been damaged as a result of the offender's fall.
The victim said to the offender "What are you doing fucking doing, mate?" to which the offender replied "I'm trying to hide from people. I'm trying to get away. I think I broke my arm."
The offender got up and stumbled towards the front gate. The victim called the police and gave chase to the offender who had jumped over the pillar and out onto the street. The offender retrieved a bicycle which had been hidden and began to ride away as the victim continued his chase.
As he victim caught the offender, the offender jumped off the bike and proceeded to raise his fist at Mr McGee saying, "I'm trying to get away, I'm trying to get away, fuck off", and attempted to punch the victim several times swinging a clenched fist, and at least on one occasion connecting with the victim's face. Mr McGee grabbed the offender, put a knee onto his back and restrained him until police arrived.
On arrival police treated the offender, rendering first aid, and then cautioned him. He was then conveyed to the St George Hospital for treatment. The offender's partner at the time, Hayley Gersbach, approached police at the hospital and informed them that the offender had taken an unknown quantity of Xanax tablets the night before. On the following day he was released into police custody and arrested. He declined to participate in an ERISP, as was his right.
Not referred to in the agreed facts, but evident from the material before the Court is that he was subsequently operated on and had a plate installed in his left arm as a result of a fracture through the mid-shaft of the left humerus, that surgery taking place approximately two weeks after the commission of the offence. It is evident from the facts that the offender knowing persons were inside the unit was intending to enter from the balcony that he had climbed onto, which would have required him to at least have opened the closed flyscreen door, constituting a breaking, the purpose of the entry being, by inference, to steal property from within. There are many more serious indictable offences which might have been intended. In my view, the offence committed by the offender falls above the low range but not at the mid-range in terms of objective seriousness. As to the common assault, there is no evidence of any significant injury occasioned by the punch to Mr McGee's face.
As to subjective matters, before the Court is the offender's criminal history, a New South Wales Department of Corrective Services Conviction, Sentence and Appeals Report, several documents relating to his breach of parole, a bundle of medical reports, some 30 pages in relation to his hospitalisation and surgery, being Exhibit K2; a letter from Julie Sneddon, the Chief Executive Officer of Cana Communities, dated 4 April 2020, and a psychological report under the hand of Mr Sheehan, dated 2 March 2020. In addition, the offender has given evidence on sentence, attesting to the truth of the information provided to Mr Sheehan, amongst other matters, and the subjective matters are drawn from the material that I have referred to.
The offender had an unremarkable early and middle childhood, except that his stepfather was a violent alcoholic who left when the offender was aged nine. When the offender was 13 years old, his biological father died. This is said to have had a significant effect on the offender, who had primarily identified with his father as a role model. It can be said that from that point of time that he in fact spiralled out of control, becoming angry, withdrawn and defiant. His school performance, which up to that time had been relatively normal also deteriorated, culminating in his expulsion in Year 8, and leading to his association with negative social influences. He was asked to leave home at the age of 14 years by his mother and has had an unsettled subsequent home life, moving from one ad hoc home to another. He was eventually placed with an aunt and uncle. However, the uncle was violent and a drug user, and took the offender along while committing criminal offences, and introduced the offender to drug use. At the age of 16, while in a juvenile detention centre, he alleges that he was sexually assaulted by a male guard.
He eventually completed the High School Certificate while in custody in 2002, and he is said to have recently reconnected with his family, who are described as being disappointed but supportive and hopeful, although there is no indication that that has been communicated by his family. He has obtained some formal qualifications while in custody in respect of the fitness industry and in his evidence he indicated an interest in obtaining further work qualifications as may be available from courses while in custody. I note that Ms Sneddon of Cana Communities first came in contact with the offender in 2016 when he was sentenced to the Compulsory Drug Treatment Centre. She regards him well and continues to offer support to him when released. She opines:
"If he commits to regular and long term psychological support he will learn the skills not only to manage his pain and shame, but he will learn he is worthy and can be comfortable and contribute to the community in a positive way."
I note in respect of the Compulsory Drug Treatment Centre, he did not complete the course successfully. He was apparently asked to leave home by his mother because he had become uncontrollable in the home and was already, as a juvenile, committing offences including offences of break and enter. He is said to have a minimal history of paid employment, but worked for a local council for one year in 1994 and for a concreter for a period of six months, but has held very little employment since 1996, with the exception of working as a kitchen hand in the year 2000, and in a processing factory in 2007, which was his last experience in paid employment.
He has both a Certificate II and a Certificate IV in Fitness but has never obtained any employment in the industry, although I note Ms Sneddon attests to the fact that he has trained members of her family and the broader community. She also states that he was in fact offered an opportunity of employment at Fitness First but that he refused it because he was concerned and shameful in respect of his history. He has had minimal experience with intimate relationships and he has no children. Mr Sheehan describes his intimate relationships as having been as transient and disconnected as his other interpersonal contact with family and friends. At the time of this offending he is said to have had a girlfriend, who I previously referred to in dealing with the agreed facts, and she is said to be prosocial and a non-drug user. However, the relationship is not continuing. She had objected to his drug use but he failed to respond.
He started experimenting with alcohol and cannabis at the age of 14 years, binging on both substances on weekends, with his cannabis escalating to daily activity. He started using amphetamines at the age of 16 and commenced injecting amphetamines from the age of 17 with instruction from his uncle. He moved on to heroin at the age of 18, which he interspersed with a heavy use of non-prescribed benzodiazepines. He developed tolerance and dependence on both substances. His use was poorly controlled and he had at least five episodes of overdose during the 1990s. He participated in the Odyssey House Residential Rehabilitation Program in 1995 but failed to complete the program, leaving after six months. He completed the Kedesh House program in 2001, being a two-month program, but then returned to the same area and associates as he had been previously concerned with and quickly relapsed.
He has tried methadone and buprenorphine programs in 2001 and 2002, but these were also unsuccessful. He claims that a five-year period in custody between 2010 and mid-2015 broke his habit, and that he had not used heroin for the past nine years. However, he continued the intermittent use of cannabis and benzodiazepines. Having been released on parole on 7 May 2015, he relapsed into methylamphetamine use and commenced a binge on that substance within three weeks. He is further reported to have abstained from drug use since his arrest in May of 2015 until his release to parole in November 2018. It was at this time he participated in the Compulsory Drug Treatment Correctional Centre Program, proceeding to Stage 3, at which point his participation was terminated due to his having breached the conditions. He was otherwise found to be generally positively participating.
He later relapsed to the use of benzodiazepines and later cocaine within a month of his release in November 2018. He commenced the Suboxone Program in January 2020. Mr Sheehan opines:
"I would not recommend repeated exposure to a residential rehabilitation program. Mr Kelly's discourse reveals that he has sufficient insight into the behaviours and thinking underpinning his drug use. His problem continues to be utilising these insights in the community in a way that assists him to cope positively as opposed to wilfully sabotaging himself."
He has been recently participating in a number of drug-related and other programs available in custody, such as various parts of the EQUIPS program, the Health Survival Program and programs designed to assist with life skills in relation to drug and alcohol problems as well as the EQUIPS program relating to aggression.
As to the injuries he received after falling from the balcony, he is referred to by Mr Sheehan as having largely recovered, although he continues to experience back pain which is treated with Panadol. As previously referred to, he was released on parole on 29 November 2019 and was assisted by Inner City Supported Housing, sharing a terrace with other parolees. He informed Mr Sheehan that drugs were omnipresent in the home and he soon started using Suboxone and Xanax intermittently because he felt depressed, and later turned to the use of cocaine before successfully obtaining his own residence in Campsie; however, by that stage he was already well involved again with drug use.
He claimed to have only partial recollection of the actual offence, but said he assumed that his behaviour was motivated to obtain money. He is said to have expressed remorse regarding the offence, and has stated:
"People in their home should feel safe and secure. I'm sorry for what I did. The people were asleep in bed. It would have been horrible and scary for them."
I note that he has made almost an identical statement in his evidence today. Mr Sheehan describes his past criminal history and antecedents in this fashion:
"Mr Kelly has prior convictions commencing from 1991 when he was aged 15 years, after which there are a long list of offences pertaining to stealing goods, motor vehicles, breaking into homes, possession of drugs, goods in custody, driving offences, robbery and assault. Mr Kelly was serving parole for a conviction of aggravated robbery with wounding when he committed the index offence. His previous sentence expires in May 2020."
The offender's criminal history is significant. Ignoring his juvenile history, there are a significant number of offences of a relatively like nature. The offender has served a significant number of sentences as a result of his almost continual criminal offending. The Corrective Services Conviction, Sentences and Appeals Report demonstrates that he is rarely able to stay out of custody for any significant period, having first commenced sentence as an adult in March of 1996. Frequently the periods of time out of custody are only a matter of weeks. On two occasions he has managed to stay out of custody for approximately a period of almost a year.
His criminal history, despite the significant periods of custody that he has served, and the endeavours from time to time to assist him by way of programs to deal with his use of prohibited drugs and general criminal offending indicates a continuing contumelious disregard for the law. A number of the offences involved prohibited drugs, but many of the offences are the types of offences which are likely to be committed by those who have significant drug problems, but in relation to this offender, do involve offences from time to time of violence. There are a number of offences in his past record which are significantly more serious than the current offence.
In his evidence, when asked in cross-examination why anything would be different now in terms of his future conduct, he said words to the effect, not a direct quote, "Because I'll continue to make efforts and do drug and alcohol courses and address offending behaviour." As to the prospect of his using drugs in the future he said, words to the effect of, "I can't say I'll never use drugs again. I'll give it my best shot." In my view, considering the offender's past criminal history, and the number of times he has done relevant courses or rehabilitation programs but continued to offend, there can be little prospect that he will succeed in the future, until such time as he can make a genuine commitment, which is not yet evident, to ceasing to use prohibited drugs. The last quote from him, in my view, indicates that he recognises that his prospect of ceasing to use prohibited drugs is not good in stating "I'll give it my best shot".
No submission has been made, or Mr Spohr on behalf of the offender has disavowed any suggestion that the report of Mr Sheehan provides any psychological finding in relation to the offender that has any causal relationship to his current offending, or can act to reduce his moral culpability, but submits that Mr Sheehan's findings simply go to how it is that the offender in fact became a drug addict in the past, and continues to be one. The offender to Mr Sheehan and in his evidence expressed in the same terms remorse and contrition. Mr Spohr relies on the fact that the Crown did not challenge the statements to which I have previously referred.
In my view, the statements were somewhat glib, and of course the offender is someone who is very experienced in relation to the matters that are relevant to the mitigation of sentence in the court. It is difficult to accept as genuine expressions of remorse and contrition from offenders who, like this offender, repeatedly commit similar offences. I accept that he has at least expressed remorse and contrition. In my view it is a moot point as to whether that expression is genuine, even in the absence of cross-examination. I will give him the benefit of the doubt on that question.
As to the prospect of rehabilitation, in my view the offender must be regarded as being a high risk of reoffending on the basis of his past history. In my view his criminal history and the Conviction, Sentence and Appeals Report indicate that he has in effect become institutionalised. Whatever salutary effect being in prison has had in relation to his use of prohibited drugs, it does not last for any significant period of time once he is released into the general community, and in my view that will continue to be the case until such time as he makes a genuine commitment when in the community to not using prohibited drugs. That may only come with age, and in many cases that point is reached by criminal offenders somewhere in their early 30s. I note that he is already past that point.
It has been submitted that the injury received can be taken into account as extra-curial punishment. The Court of Criminal Appeal has held on a number of occasions that injuries received during the course of committing an offence may be taken into account as extra-curial punishment. (See Silvano v R (2008) NSWCCA 118, and also Whyborow v R (2008) NSWCCA 270, and Alameddine v R (2006) NSWCCA 317) with Kirby and Hislop JJ agreeing:
"…There is a strong current of judicial opinion against outright rejection of the possibility of mitigation even where the injury is self-inflicted or induced by the activity of the offender."
At para 25, it was stated that it was an available factor to be weighed in favour of the applicant in the sentence assessment.
In this matter of course, the offender had the benefit of his injury being appropriately repaired by the surgical insertion of a plate, and his current difficulties in relation to any injuries suffered appear to be of a relatively minor nature. I will, however, take into account to a minor degree his injury as extra-curial punishment consistent with the authorities.
In respect of this matter, there are aggravating features which must be taken into account on sentence. They are, as I have referred to, that the offender has a significant record of previous convictions, which as referred to include a number of like offences. Secondly, the offence was committed in the home of the victims, at least in the sense that the balcony was part of the second floor of the unit. Lastly, that the offence was committed while the offender was on conditional liberty in relation to a common assault, and an offence of aggravated robbery with wounding.
The commission of offences whilst on parole, or any form of conditional liberty, is a significant aggravating circumstance. Parole is a privilege, and abuse of that privilege calls for a hard punishment. (R v McVittie (2002) NSWCCA 344, R v Fernando (2002) NSWCCA 28 at 42). Offences committed while on parole demonstrate the rehabilitation which parole is designed to assist has failed and the Court cannot proceed on the same expectation of rehabilitation as open in other circumstances. Greg James J in R v Huynh (2003) NSWCCA 239 stated that:
"…It is a consequence of having a joint conditional liberty upon an undertaking to be of good behaviour that if you breach that undertaking you aggravate your culpability for the offence you commit which constitutes the breach, you surrender the prospect of liberty which you have enjoyed conditionally upon you're not committing a breach, and you must expect to serve in custody the sentence from the custodial nature of which you had been liberated conditionally."
In R v Moffatt [1990] 20 NSWLR 114 it was held that the offender should not only suffer the revocation of his parole and the consequent need to serve out the balance of the original sentence, but should also suffer a significant punishment for the latter offence to mark the gravity of his conduct in abusing his parole. I recognise that the sentencing discretion includes the ability to make the sentence imposed in this matter concurrent, partially concurrent with or wholly cumulative upon the sentence to which the offender as serving as a consequence of the revocation of parole for the reasons as referred to by Simpson J in Callaghan v R (2006) NSWCCA 58.
I note that part of the time that he has served in custody subsequent to his arrest was a fixed sentence of six months imposed on 5 August 2019 to commence on 30 May 2019 and expiring on 29 November 2019. The balance of his parole, as previously expressed, does not expire until 29 May 2020. I have given consideration as to whether the starting point of any sentence should be today 9 April 2020 or whether it can be appropriately backdated to any earlier time. I note that he would at least have been eligible for reconsideration in relation to parole on the expiry of the six-month term in November of 2019.
In my view, apart from the fact that he had not yet been dealt with for these matters, it is entirely unlikely that he would have been considered for parole at that point, considering the six-month term that had been imposed, and the content of the various parole reports that are before the Court, which indicate in my view a continuing unsatisfactory response to having been on parole. However, I will give him the benefit of backdating the sentence to be imposed to the time at which he would first have been eligible for reconsideration of parole, being 29 November 2019.
In sentencing the Court must take into account the purpose of sentence as defined by s 3A of the Crimes (Sentencing Procedure) Act. In relation to this offender, in my view considering his history of offending, specific deterrence is a very important factor to take into account. General deterrence in relation to offending of this nature is always significant and I will take both specific and general deterrence into account in determining the appropriate sentence. The Court must also take into account the fundamental purpose of punishment, and that is the protection of society. I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act 1999, having considered all possible alternatives, that there is no penalty other than imprisonment that is appropriate, and no alternative to a period of full time imprisonment.
I have taken all of those matters into account, including the 25% discount for the utility of the early plea, as referred to in R v Thomson; R v Houlton [2000] 49 NSWLR 383. I have also taken into account what I have said about the prospects of rehabilitation and reoffending. Taking all of those matters into account, Mr Kelly you are convicted in relation to the offence of committing a s 114 offence, that is enter land with intent to commit serious indictable offence, having a previous conviction of a serious indictable offence contrary to s 115. I take into account the maximum penalty available in relation to that offence, and you are convicted in respect of that offence, and I take into account the matter contained on the Form 1, being common assault contrary to s 61.
The term of the sentence is three years. It will commence, as I have previously said, from 29 November 2019. I have varied the statutory relationship by some three months in order to partly account for some of the time spent in custody from your arrest up until the date from which this sentence commences. I have reduced the non-parole period that would have been appropriate if the statutory relationship were applied by some three months. The non-parole period will accordingly be two years. The sentence commencing on 29 November 2019, you will be first eligible for parole on 28 November 2021. The balance of the term is one year. The total sentence of three years will expire on 28 November 2022.
Is there any error or matter that I have omitted?
SPOHR: No.
HIS HONOUR: Mr Crown?
WILCZEK: No.
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Decision last updated: 03 July 2020