R v Kelly [2021] ACTSC 143

R v Kelly [2021] ACTSC 143 | Case summary | Zoe

On 5 July 2019, Christopher Kelly committed a series of driving offences. These were that he dishonestly drove a motor vehicle without the owner's consent, and, at the time of that driving, had a prescribed drug in his oral fluid, that he was an unlicensed driver of a motor vehicle that was uninsured and unregistered, and that when requested to stop by a police officer, he did not do so. As Mr Kelly drove the car away to avoid an ‘unmarked Police vehicle that was blocking the exit route’, the vehicle collided with a concrete and steel letterbox and police were able to approach Mr Kelly. One of the police officers entered the front passenger side of the car and grabbed Mr Kelly by his left arm, attempting to physically stop him from driving away. Mr Kelly resisted the officer’s restraint and obtained a screwdriver which he held while flailing his arms. After an unsuccessful attempt to ‘gain … control’ of Mr Kelly by delivering one closed baton strike and then using oleoresin capsicum spray, the police officers arrested him and also charged him with resisting an ACT public official in the execution of their duty. I shall refer to these offences as the current 2019 offences.
On 16 December 2020, Mr Kelly was again arrested for dishonestly driving a motor vehicle without consent. I shall refer to this matter as the current 2020 offence.
Mr Kelly is a 28-year-old Indigenous man. [Redacted for legal reasons].
In the ACT Magistrates Court, the ACT Supreme Court and the Parramatta Local Court, his criminal record discloses that he was found guilty of and was sentenced for 27 offences, mostly of dishonesty or traffic offences including burglary and the like, but also including three offences of aggravated robbery. In the background to the current charges is a somewhat complex procedural context. Procedural Background
On 30 May 2018, Mr Kelly was convicted by Elkaim J and sentenced by his Honour for offences of aggravated robbery, obtaining property by deception (four offences), and failing to stop a motor vehicle when requested by police. His Honour sentenced him to one year, three months and 11 days imprisonment, but suspended the sentence on that day and made a Good Behaviour Order for 12 months with a probation condition: R v Kelly [2018] ACTSC 160 at [13].
On 6 August 2018, Mr Kelly was sentenced by Walker CM for offences of dishonestly attempting to take a motor vehicle without the owner's consent and going equipped for theft, both committed on 6 November 2017. Her Honour sentenced him to terms of 9 months and 5 months imprisonment respectively, both suspended immediately with a Good Behaviour Order of 12 months for each.
On 17 December 2019, he was sentenced in the Parramatta Local Court for offences of larceny, destroying property, entering a building with intent to commit an indictable offence and two offences of obtaining property by deception, all committed on 24 November 2019. He was sentenced to a total of 18 months imprisonment with a non-parole period of 10 months, expiring on 24 September 2020.
While Mr Kelly has pleaded guilty to the current 2019 offences, he has not been sentenced for them. I am not clear whether he had pleaded guilty to the current 2020 offence. He may not have been convicted for any of those offences formally at this stage.
I have no specific information as to when Mr Kelly was released on parole, but he was on parole at the time that the current 2019 offences were committed. As they were committed prior to the Parramatta Local Court sentencing him, they will not, on conviction, breach the Parole Order. They will, however, on conviction, breach both the Good Behaviour Order made by Elkaim J and those made by Walker CM.
When Mr Kelly came before the learned Chief Magistrate on 21 April 2021 for the current 2019 offences and the current 2020 offence, her Honour sentenced Mr Kelly for three offences. I have no information about those offences, nor about when they were committed, what sentence was imposed, or what was the relationship of them to the parole or Good Behaviour Orders. Her Honour, however, purported to commit and transfer the current 2019 offences and the current 2020 offence to this Court with a view to them being dealt with in the Drug and Alcohol Sentencing List.
Her Honour ordered Eligibility Assessments, for a description of which see R v McHughes [2021] ACTSC 92 at [7]. These Assessments later assessed Mr Kelly as suitable for further assessment screening, that is, for a drug and alcohol treatment assessment (a Suitability Assessment) under s 46J of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). The Eligibility Assessment of the Alcohol and Drug Services of Canberra Health Services noted that ‘… [c]linical records, [the] interview … [and] screening tool[s] all support [the] likelihood of severe substance use disorder', and that Mr Kelly ‘expressed a desire to have support to cease [his drug] use’.
In order for a Drug and Alcohol Treatment Order (a Treatment Order) to be made, Mr Kelly must first be subject to a Suitability Assessment. Once such a Suitability Assessment is made, then a Treatment Order can be considered, since a Treatment Order is a sentencing alternative to other sentences that may be imposed. On the other hand, it is required, under s 12A(5) of the Sentencing Act, that a court cannot set a lesser sentence of imprisonment than ‘the circumstances of the offence would ordinarily require only [so as] to allow … [it] to make a … [T]reatment… [O]rder’.
My practice has, accordingly, been to make this clear in my sentencing remarks, by considering the sentence first and then separately addressing the question of whether a Treatment Order should be made. Nevertheless, the hearing of the evidence and submissions on sentence will, obviously and especially for the purpose of disposing of the matters expeditiously, be ordinarily heard together, although it has occasionally been conducted partly separately, as in R v Massey (No 1) [2020] ACTSC 256.
Mr Kelly appeared in this Court in the Drug and Alcohol Sentencing List on 30 April 2021 so that, in consequence of the finding that he was eligible for a Suitability Assessment, an order for the preparation of those Assessments could be made. It became clear, however, that the Court has no jurisdiction to hear these matters.

The Crown submitted that the Magistrates Court was not able to commit Mr Kelly to this Court. Of course, this Court has, save for statutory provisions otherwise providing, only jurisdiction to hear criminal prosecutions on indictment: R v Scott (1993) 42 FCR 1 at 3, 6-7. The only statutory exceptions are in ss 90A (committal of charges) and 90B (transfer of charges) of the Magistrates Court Act 1930 (ACT) and Pt 8 of the Supreme Court Act 1933 (ACT). The Crown submitted that the offence purportedly committed to this Court was, in fact, required to be prosecuted summarily.
That offence was of dishonestly driving a motor vehicle without the owner’s consent, an offence against s 318(2) of the Criminal Code 2002 (ACT) which prescribes a maximum penalty of imprisonment for five years or a fine of $80,000, or both. Section 190 of the Legislation Act 2001 (ACT) provides that an indictable offence is an offence punishable by imprisonment for longer than two years or is otherwise declared by an ACT law to be an indictable offence. It includes ‘an indictable offence that is or may be dealt with summarily’. Thus, the offence of dishonestly driving a motor vehicle without the owner's consent is an indictable offence.
All the other offences are summary offences and, of course, the Supreme Court has, absent statutory intervention, no jurisdiction to hear and determine any such charge for such an offence. Nevertheless, the Crimes Act 1900 (ACT) (the Crimes Act) makes separate provisions under s 375, such that a defendant may consent to have certain indictable offences disposed of summarily. Further, under s 374 of that Act, a prosecutor may elect to have certain offences, including those punishable by imprisonment for longer than two years but not longer than five years, dealt with summarily; thus, this current offence may be the subject of such an election.
Under s 374(6) of that Act, if the prosecution makes such an election, then ‘the court must hear and determine the charge summarily’. I was informed and accepted that, in these proceedings, a prosecutor had made such an election. It appears, regrettably, not to have been drawn to her Honour's attention when purporting to commit and transfer the charges to this Court. Thus, the offence could not have been dealt with on indictment and the committal was a nullity. This Court had no jurisdiction. I therefore could not even remit the proceedings back to the Magistrates Court, which is why I made the request I did, referred to below (at [20]).
Section 90B of the Magistrates Court Act, which permits a transfer of charges to be dealt with by this Court, only applies to summary offences. Thus, the Magistrates Court may transfer otherwise summary-only offences to this Court, but only if a person is committed for trial which, in the context, includes for sentence: R v Loulanting [2015] ACTSC 172 at [19]-[20]. As there was, in this case, no such committal, the transferred charges could not have been validly transferred either, and so this Court had no jurisdiction to deal with them. Of course, Mr Kelly still has to deal with the breach of this Court's Good Behaviour Order, which Elkaim J had made. The Magistrates Court could not even commit Mr Kelly for sentence under s 92A of the Magistrates Court Act, which it otherwise can do in the case of indictable offences tried summarily, since an election has been made by the prosecution: s 92A(4) of the Magistrates Court Act.
Section 108 of the Crimes (Sentence Administration) Act 2005 (ACT) (the Sentence Administration Act) provides that if a court is satisfied that an offender subject to a Good Behaviour Order has breached any of his or her Good Behaviour obligations, the court has power to deal with that matter. Given that Mr Kelly has pleaded guilty to the offences, I consider that the Court can be satisfied that he has breached a core condition of the Good Behaviour Order under s 85(a)(i) of the Sentence Administration Act. That gives the Court jurisdiction to remand Mr Kelly in custody, which I did, and I requested the parties to re-list the matter, for which I had no jurisdiction, before the Chief Magistrate so that they could be dealt with according to law.
It would appear that, under s 180 of the Legislation Act, the prosecution could withdraw the election for summary disposal. While it is clear from Dunstan v The Queen [2003] ACTCA 22 that there are limits to the reach of this section, I am not satisfied that, in a case where an election has been made and the proceedings have not concluded, it does not apply, notwithstanding that there is no express power in the Crimes Act for the prosecution to withdraw the election, and notwithstanding that s 375A of the Crimes Act gives an express power to a defendant to apply to the court for leave to withdraw his or her consent for summary disposal of a case, which is a necessary provision because that section provides for a specific condition to the defendant’s exercise of the withdrawal of consent.
In any event, the prosecution intended, it appears, that such an election in this case be a matter of policy and would therefore not be withdrawn. It is at least disappointing to me that the application of a policy, the rationale for which and its application in this particular case has been entirely unexplained before me, will prevent a man with a severe drug dependency, especially an Indigenous man in the current circumstances, from accessing the benefits that participation in the relatively recent sentencing alternative of a Treatment Order would provide and which, as with similar programs elsewhere, has been able to assist many people in Australia to rehabilitate. There may have been perfectly proper reasons for this approach, but they have not been shared with the Court.

Clearly, the NSW Parole Order would have rendered Mr Kelly ineligible for the making of a Treatment Order. The court was advised, however, that the Parole Order had been suspended by New South Wales Corrective Services until the ACT matters are concluded. This raised the question of whether Mr Kelly was therefore, in the words of the definition, currently ‘subject to’ the Parole Order. That is a difficult question. There are some suggestions that he may be if I accept the reasoning of Kaye J in WBM v Chief Commissioner of Police (Vic) [2010] VSC 219 at [22]-[23], though that occurred within a somewhat different context and the suspension of the Parole Order may, in this context, point in another direction.
Helpful and thoughtful submissions were made concerning the status of the NSW Parole Order by Ms L Skinner, counsel for Mr Kelly. The actual position subsequently appeared a little different. Attached to the targeted and thorough submissions in reply from the Crown was an email of 13 May 2021, from the Director and Secretary of the New South Wales State Parole Authority, which advised that Mr Kelly's ‘parole supervision is currently suspended given he has detention in the ACT’, and that ‘his parole order remains active … [but] will expire on 24 May 2021’. Thus, Mr Kelly appears, in fact, to be still subject to a Parole Order and so is, on that basis, presently ineligible to be the subject of a Treatment Order.
Nevertheless, the Court could proceed to order Suitability Assessments as Mr Kelly will not be subject to a Parole Order after 24 May 2021, when the ineligibility will be resolved and which would be well after the Suitability Assessments are completed, as they take approximately five weeks to complete where an offender is in custody.
This, however, does not resolve the issue, for there remains the question of the current 2019 offences and the current 2020 offence. I am advised that the Chief Magistrate proposes to sentence Mr Kelly for these after 24 May 2021.
The issue arises as the Chief Magistrate proposes to defer passing sentence by making what is sometimes referred to as a ‘Griffiths Bond’ or ‘Griffiths Remand’: see Griffiths v The Queen [1977] HCA 44; 137 CLR 293. This is, in a sense, a hypothetical issue since no such order has been made. Ordinarily, courts do not decide hypothetical issues: see Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 at 356 [47]-[48]. Nevertheless, this is a purely legal issue and does not depend on any facts. It appears to be convenient to address the issue, as it would be very inconvenient if her Honour had to sentence Mr Kelly not knowing the consequences of any order her Honour should make.
A Griffiths Remand is effectively an adjournment of the sentencing proceedings to permit the offender to take relevant steps to address his or her offending, usually by drug rehabilitation. It was used in this court in the late 1970s and later from time to time. As I explained in R v Mico [2010] ACTSC 64 at [19], the Deferred Sentence Order – a sentencing option available under s 27 of the Sentencing Act – has, in effect, formalised that approach. Indeed, the Crimes (Sentencing) Bill 2005 Explanatory Statement, which Bill became the Sentencing Act, explicitly states, at page 14, that: ‘[d]eferred sentence orders are a codification of an existing power available to the Court known as Griffiths remands following the High Court's decision in Griffiths v The Queen’ (citations omitted); see also R v Pelecky [2020] ACTSC 246 at [21].
The Deferred Sentence Order, however, has provided some structure that is not part of the Griffiths Remand, such as, for example, s 27 of the Sentencing Act, which prescribes some pre-conditions. Some are likely to be accepted under a Griffiths Remand, but not all will necessarily be accepted. For example, s 27(1)(c) provides that the offender must not be serving, nor liable to serve, a sentence of imprisonment. That would not prevent the making of a Griffiths Remand were, for instance, the offence only to have a short period of imprisonment yet to serve and thereafter the offender could undertake some rehabilitation, or other relevant activity to direct the rehabilitation, that the Griffiths Remand was intended to promote.
There are other procedures which are set out in Ch 8 of the Sentencing Act, which codifies the Deferred Sentence Order, which is seemingly based on the Griffiths Remand but which contains legislative requirements that are not necessarily required under the latter. For example, the court must indicate the penalties that might be imposed if the offender is not compliant with the Deferred Sentence Order (see s 118 of the Sentencing Act) which, while perhaps desirable, is not required when making a Griffiths Remand. Further, a Deferred Sentence Order can only be made for a maximum of 12 months (see s 122 of the Sentencing Act) but there is no limitation on the length of a Griffiths Remand, though good practice suggests a lengthy bond is undesirable unless there is a very good reason, such as a rehabilitation program of 15 or 18 months that is suitable for an offender.
Another significant difference, apart from the various obligations to give notices and reasons in various circumstances when a Deferred Sentence Order is made, is that the Deferred Sentence Order is not limited by the conditions that can be imposed by s 25 of the Bail Act 1992 (ACT) (see s 133(2) of the Sentencing Act), but this does constrain a Griffiths Remand, which relies on the bail, unless an offender is simply otherwise at large – an unlikely scenario, for then no conditions can be imposed. Ms Skinner made, in her recent, carefully constructed submissions supported by her helpful oral submissions, reference to the differences between a Deferred Sentence Order and a Griffiths Remand.
I acknowledge that there are such differences but, in my view, they are not of such a significance as to detract from my original view.

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