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R v Kelly [2021] ACTSC 253 | Case summary | Zoe

ACTACTSC

R v Kelly

[2021] ACTSC 253

Supreme Court of the ACT|2021-09-21|Before: Refshauge AJ

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Source facts

Court

Supreme Court of the ACT

Decision date

2021-09-21

Before

Refshauge AJ

Catchwords

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –
Judgment and Punishment – Sentence – Cancellation of Good Behaviour
Order – Childhood Disadvantage – Imposition of Suspended
Sentence

Source

Original judgment source is linked above.

Catchwords

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –Judgment and Punishment – Sentence – Cancellation of Good BehaviourOrder – Childhood Disadvantage – Imposition of SuspendedSentence

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: R v Kelly (No 2)

Citation: [2021] ACTSC 253

Hearing Date(s): 17 September 2021

Decision Date: 21 September 2021

Before: Refshauge AJ

Decision: 1. That the Good Behaviour Order made on 30 May 2018 be cancelled. 2. That the period of 6 months and 11 days imprisonment, that being the remaining period of the sentence then imposed which was suspended, be imposed to be served from today, 21 September 2021. 3. It be noted that the non-parole period set by Chief Magistrate Walker on 30 August 2021 has been cancelled. 4. A non-parole period to commence on 21 April 2021 and end on 20 January 2022 be set. 5. Under s 67 of the Crimes (Sentencing) Act 2005 (ACT), it be recommended to the Sentence Administration Board that the following conditions be made with a Parole Order: a. That Christopher Kelly be assisted to consider engaging with drug rehabilitative agencies to determine whether he would benefit from assistance to manage his drug dependence and, if so, assisted to engage with such professional counselling and treatment; and b. That Christopher Kelly be assisted to obtain post-custodial employment and given assistance to engage with appropriate agencies such as a job network provider.

Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Cancellation of Good Behaviour Order – Childhood Disadvantage – Imposition of Suspended Sentence

Legislation Cited: ACT Magistrates Court, Practice Direction 1/2012: Galambany Court, August 2012 Crimes (Sentence Administration) Act 2015 (ACT) ss 110, 130 Crimes (Sentencing) Act 2015 (ACT) ss 12A, 12(3), 66, 67 Crimes Act 1900 (ACT) ss 374(6) Criminal Code 2012 (ACT) ss 110, 318(2), 361(1) Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 20(1) Road Transport (Diver Licensing) Act 1999 (ACT) s 31(1) Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 5C Road Transport (Third-Party Insurance) Act 2008 (ACT) s 17(1) Road Transport (Vehicle Registration) Act 1999 (ACT) s 18(1)

On 30 October 2017, Christopher Kelly engaged in what Elkaim J described, when sentencing him in R v Kelly (2018) ACTSC 160 at [3], as ‘a silly escapade’, leading to six offences of violence, dishonesty and breach of traffic regulations. Though not expressly articulated, it appeared that Elkaim J had, on 30 May 2018, convicted Mr Kelly of one offence of aggravated robbery, four offences of obtaining property by deception and one offence of failing to stop when required by police. His Honour then sentenced Mr Kelly to a total period of imprisonment of 1 year, 2 months and 11 days for those offences. Of that period, 8 months had been and were spent in pre-sentence and post-sentence custody, prior to the remaining balance of 6 months and 11 days imprisonment being suspended and a Good Behaviour Order being made for 12 months from 6 August 2018.
On 5 July 2019, Mr Kelly engaged in some driving which constituted some serious and some less serious breaches of traffic laws. Once he was convicted of these breaches, as he would be on his plea of guilty, he would be in breach of the Good Behaviour Order made by Elkaim J.
These offences were dealt with in the ACT Magistrates Court following proceedings in the Galambany Court. I have the transcript of the proceedings in the Galambany Court on 21 April 2021 and 30 August 2021. The Galambany Court is constituted under Practice Direction No. 1 of 2012 of the Magistrates Court of the ACT. On 30 August 2021, sentence was imposed in the Magistrates Court: see Practice Direction No.1 of 2012; [49]. It is not entirely clear from the transcript when the convictions for the offences were imposed, but, at least, by implication, when sentence was imposed on 30 August 2021, the convictions were also imposed. It seems that it was not done earlier because, on 30 August 2021, one of the charges had not been entered and, also on that day, the charge was amended.
These convictions then constituted breaches of the Good Behaviour Order made on 30 May 2018.
These proceedings have had a rather protracted and difficult course. That is set out in R v Kelly [2021] ACTSC 143; 16 ACTLR 81 at 82-86; [5]-[25]. I do not need to repeat what was there said.
In the event, the prosecution was, for reasons that have not been the subject of any submissions before me, unprepared to withdraw its election that had been made under s 374(6) of the Crimes Act 1900 (ACT) for the offences then before the Magistrates Court and so the intention of the learned Chief Magistrate that Mr Kelly be considered for a Drug and Alcohol Treatment Order (a Treatment Order) under s 12A of the Crimes (Sentencing) Act 2015 (ACT) (the Sentencing Act) could not be carried out.
As a result, Mr Kelly was sentenced for the offences then before the Magistrates Court to a total sentence of two years imprisonment to commence from 21 April 2021, with a non-parole period that ends on 20 January 2022. This meant that he was subject to a sentencing order within the meaning of s 12A of the Sentencing Act. That also meant that he was no longer eligible for a Treatment Order. These proceedings became, then, simply a consideration of the breach of the Good Behaviour Order and the sentence to be imposed as a result.
It is in that context that I now must sentence Mr Kelly.

A Good Behaviour Order is required when a sentence of imprisonment is suspended (s 12(3) of the Sentencing Act). It has, as its purposes, to encourage and provide an opportunity for such offenders to rehabilitate and to engage in activities which might predispose them to good behaviour and promote a crime free lifestyle, all dependant on such offenders avoiding further offending: see R v RB [2015] ACTSC 34 at [1].
In addition, of course, such an order is also intended, especially if there are conditions such as a probation condition, to control the offender's behaviour whilst in the community: see BK v Middlemiss [2018] ACTSC 158 at [10].
In this case, there were, indeed, conditions: a probation condition and conditions requiring engagement with a counsellor to address drug abuse, a job network provider, a mental health professional and, if appropriate, cognitive based therapy to address antisocial attitudes. While such conditions are obviously desirable, it is regrettable that I have rarely been able to ascertain whether such conditions are actually addressed or enforced. For example, while Mr Kelly's further offending has been the subject of breach action, no such action has been taken in respect of any failure by him to engage with those individuals or agencies nominated in the above conditions. However, there was no evidence before me that suggested any such involvement by Mr Kelly, or any rehabilitation achieved by any such engagement. This is, of course, a weakness not directly of the Order itself, but in the system which is intended to support it.
In the event of a breach of a Good Behaviour Order, as is the case here, the Court must then proceed to take appropriate action. In the case of a Good Behaviour Order made when the sentence of imprisonment is suspended, or partly suspended, and where the Court is satisfied that the offender has breached that Order, it must cancel the Good Behaviour Order and either impose the suspended sentence, or re-sentence the offender: s 110 of Crimes (Sentence Administration) Act 2005 (ACT). Unlike some other jurisdictions, there is no presumption in the ACT section in favour of imposing the sentence that was suspended: Guy v Anderson and Telford [2013] ACTSC 5 at [83]. The Court has a discretion: Gyory v The Queen [2012] ACTCA 28 a [9].
As with all such discretions, it must be exercised judicially. One relevant matter is that the breach of the Good Behaviour Order constitutes a breach of the trust that the Court has offered to the offender to be in the community and not in custody. That must be recognised: R v Ogilvie [2016] ACTSC 265 at [30], [66]; R v Curtis (No 3) [2017] ACTSC 101 at [30]. Thus, failure of a court to act effectively following a breach will likely bring such sentences into disrepute: Saga v Reid and Collett [2010] ACTSC 59 at [99]-[100]. Nevertheless, re-sentencing may still be an appropriate response: Saga v Reid and Collett at [102]. Thus, even where imprisonment is appropriate, questions of suspension and community service, even Intensive Corrections Orders, will be appropriate: Thompson v Young [2008] ACTSC 11 at [10].
In order to consider how to respond to a breach of a Good Behaviour Order and how to exercise the discretion judicially, the Courts have clearly indicated some important considerations. I have set some of these out in Amos v McCarron [2017] ACTSC 6; 79 MVR 179 at 192-193; [119].
In the first place, it is necessary to have detailed information of the actual facts of both the original offending and of the breach: Gyory v The Queen at [10]; R v Beniamini (No 2) [2017] ACTSC 32 at [52]-[53]. Further, the following issues are relevant:

It is important first to set out, briefly, the facts of the earlier offences that led to the imposition of the sentence of imprisonment, that was then partly suspended, requiring the making of the Good Behaviour Order.
The aggravated robbery was committed when Mr Kelly and two co-offenders stole a purse from a female victim on 30 October 2017. It was a robbery because, when the purse was stolen, the offenders used, or threatened to use, force on the victim, though, regrettably, I do not have the details of that force. From the nature of the offences and from the sentence, I accept that the force used by the offenders was not serious. It was also an aggravated robbery because of the presence of two co-offenders. As an offence against s 110 of the Criminal Code 2012 (ACT), it attracted the very serious maximum penalty of 25 years imprisonment, or a fine of $440,000, or both.
Mr Kelly then drove from the scene of the offence and used a credit card found in the victim's purse to make, what were described by the learned Sentencing Judge as, ‘some relatively modest purchases’: R v Kelly (2018) at [3].
Some days later, police saw the vehicle in which Mr Kelly and his co-offenders had driven from the earlier offence. They directed that Mr Kelly, the driver, stop the vehicle, but he did not do so. They later apprehended him and he was charged with the various offences.
He was sentenced, as I have said (at [1]), to 1 year, 2 months and 11 days imprisonment for the aggravated robbery offence. That indicates the relatively moderate seriousness of which Elkaim J regarded the aggravated robbery offence to have been. The other sentences were made concurrent, being one months imprisonment for each of the four offences of obtaining property by deception and three months imprisonment for the offence of failing to stop when directed by police.
As also noted above (at [1]), Mr Kelly was released after serving eight months of the sentence, some of which was pre-sentence custody. The remaining balance of six months and 11 days was suspended and the Good Behaviour Order made, with the various conditions that I have outlined above (at [11]). As also noted above (at [11]), no breach of the Good Behaviour Order by Mr Kelly was noted until he committed further offences on 5 July 2019, almost exactly, to the day, 11 months after the commencement of the 12 month suspension and Good Behaviour Order.
These further offences were as follows.
On 5 July 2019, Mr Kelly was seen driving a vehicle that had been stolen from the driveway of the owner's residence earlier. Police attempted to intercept the vehicle, but could not then do so. Later they saw the vehicle parked in front of a residence, but, before they could arrest Mr Kelly, he drove off. Police blocked his exit with an unmarked police vehicle. When attempting to escape and avoid colliding with the police vehicle, Mr Kelly drove the vehicle so that it collided with a concrete and steel letterbox.
When a police officer got into the vehicle to apprehend Mr Kelly, Mr Kelly produced a screwdriver that he had been using to engage its starter motor and attempted to resist being arrested, despite being told to stop. He was then struck with a police baton and the police officer subdued him with capsicum spray so that he was able to be secured and handcuffed.
Records showed that Mr Kelly's driver licence had expired on 1 November 2011 and that the vehicle had not been registered or insured since 7 May 2018.
Mr Kelly was subject to alcohol and drug screening tests. The result of the tests did not show that he was affected by alcohol, but did show that he was affected by a drug, which was later confirmed to be a prescribed drug, in his oral fluid.
These facts led to him being charged with offences of:

He has, regrettably, a serious record for a young man. There are 42 offences recorded in his criminal record. Some are very serious, such as 3 offences of aggravated robbery and 2 offences of burglary. In addition, there are 5 offences of driving or riding in a stolen motor vehicle and 15 other dishonesty offences.
He clearly has a problem with drugs, though the only direct drug offence, as opposed to likely drug related offences, namely of dishonesty, is one of drug driving. He has attempted some rehabilitation. Attempts to have him subjected to a Treatment Order have been unsuccessful. Conditions of his Good Behaviour Order to address this issue do not seem to have been fruitful. Hopefully, the family situation will provide the motivation he needs, but experience suggests he will be better able to address the issue with some professional assistance.
While he is no longer a young man for sentencing purposes, he still has much of his life ahead of him and the opportunity to make a family and contribute to the community. He seems, too, to have reconnected with his rich and supportive heritage through, especially, the Winnunga Nimmityjah Aboriginal Medical Service. Hopefully, he can develop that connection to his heritage and use it to help sustain his road to recovery and a drug and crime free lifestyle.
His history does also bring into play the principles adopted by the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571. These principles were developed by the Courts of Appeal in Victoria and New South Wales, especially in the context of Aboriginal offenders who were brought up in circumstances of significant childhood disadvantage. These principles were adopted in this Territory in TM v Karapanos [2011] ACTSC 74; 250 FLR 366.
These principles established that such childhood disadvantage which led to a failure of a young person to gain the appropriate grounding to avoid criminal activity because of experiences of violence, alcohol abuse, lack of guidance, schooling and training, lack of employment or nurture, would render offending by such persons, not limited to First Nations people, but all subject to that disadvantage, to be less morally culpable in the offending. The High Court made the important point, in adopting that approach, that the effect of such disadvantage does not diminish with age or with subsequent offending and punishment and must be taken into account in each sentencing exercise. It cannot, of course, reduce a sentence below what is proper for the offending, but must factor in the circumstances that led to that offending.
This is similar to the principles, also relevant here, that drug and alcohol dependence gained by medical misadventure, or at a young age before informed consent can be expected, can moderate offences caused by such dependence. See R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 397-398; [273]; Douglas v The Queen (1995) 56 FCR 465 at 470.

In addressing the question of how to approach the sentencing of Mr Kelly for the breach of the Good Behaviour Order, I must have regard to all these matters to which I have referred.
I note that I have set out the details of the offences that led to the Order being made and those offences that constitute the breaches. I have regard to those offences, as well as to the fact that he has already been dealt with for breaches of the concurrent Good Behaviour Order made in the Magistrates Court.
I accept that he had, by the time of the offending, completed all but one twelfth of the Order without any breach. Unfortunately, I do not have any details of rehabilitative efforts made, though the fact of the drug driving offence strongly suggests that he had not, at that stage, managed to get his drug dependence under control. He says, however, that he is now committed to rehabilitation and that family motivation is a strong factor in favour of that. This means that there is some strong prospect of further rehabilitation, though I strongly suggest that Mr Kelly may need some professional assistance.
The fresh breaching offences are, generally, with one exception, of a different kind of offending than that which led to the suspended sentence and generally less serious, though still with some dishonesty in the driving of the stolen motor vehicle. It does not, however, show a continuation of the pattern of more serious forms of offending.
The breaching offences do show some disregard to the need for a crime free lifestyle, but, again, Mr Kelly says that is his present intention. I accept that, but it has to be translated from words into action. His employment experience and his training at the Alexander Maconochie Centre, as mentioned above (at [36]), will hopefully help with that when he is released, though it is my hope that he will get some assistance to translate that training into employment outside the prison.
No warning had been given to him of a result that would be relevant, so far as I can tell, from further offending and no unusual resources have been devoted to him.
Both parties submitted that the sentence to be imposed should not interfere with the opportunity for him to be released on parole when his current non-parole period ends on 20 January 2022, as mentioned above (at [30]). Indeed, if he continues to conduct himself in the way he has been there must be a realistic expectation that he will be released then. It is, of course, a decision of the Sentence Administration Board, but I would hope that this would be its decision in all the circumstances.
I see no reason not to accept the submission of the parties and, indeed, having regard to all the circumstances I have set out in these reasons, I have every reason to do so. Mr Kelly’s intention to rehabilitate must be supported in every way that a sentencing court can and the opportunity for a serious offender to gain the maturity and commitment to stop preying on the community and devote himself to his family must be supported, encouraged and, to the extent permitted, enabled.
Nevertheless, it is important to show that the breaches of the Good Behaviour Order must be taken seriously. There is, however, no reason why I should not simply impose the balance of the sentence, being the period suspended, that is six months and 11 days. That would show the seriousness of the breaching offences and the breach of Court’s trust, and, if I did that immediately, it would not interfere with the non-parole period.
Given that Mr Kelly will be in custody until at least 20 January 2022, there is no reason for me to re-sentence him and, although I had no evidence of compliance with the substantially rehabilitative conditions made by Elkaim J which may have justified that, there is no such evidence and re-sentencing is not appropriate.
That imposition of the balance of the sentence will, however, bring s 66 of the Sentencing Act into operation. Therefore, the imposition of the sentence will automatically cancel the non-parole period and I will have to set a new one.
I can, further, recommend conditions of parole under s 67 of the Sentencing Act. If I do so, the Sentence Administration Board is required to have regard to them: s 130 of the Crimes (Sentence Administration) Act 2005 (ACT). I note that recommended conditions are both intended, and seem most appropriate, to be effected post-sentence and are not intended to delay a grant of parole that would otherwise be made.

Mr Kelly, you have been in the Courts a long time now, so you probably understand most of what I have said, but it is possible some of it went over your head. I am obliged to explain to you what I have done.
Effectively, I have said that you have breached the Good Behaviour Order and the suspended sentence that were imposed by Elkaim J in 2018. Because of all the circumstances, however, I think that I should simply impose the balance of that sentence, which is six months and 11 days imprisonment and I do that from today.
That means that the non-parole period set by Chief Magistrate Walker has been cancelled and I have reset the non-parole period to end the same day that Her Honour had set, namely 20 January 2022. If you apply for parole, and I certainly recommend that you do so, the Sentence Administration Board will determine whether you will be granted parole. Your intentions, that you have expressed and that you have carried out within the Alexander Maconochie Centre, to be drug free, to get a job and to put your life in order are things that you need to do if you want to have a good family life and put this life behind you, as you told the Galambany Court that you wanted to do.
The Court needs to assist you in doing that and I have done that by maintaining the non-parole period and by asking the Sentence Administration Board to give you the opportunity to consider two things which I think are really important. First, you need to work through your drug dependency and, although you have committed yourself to not using, and so far as I can tell you are not using in custody at the moment, experience shows that some professional assistance would assist you with things like relapse prevention and building resilience and strength. I want you actually to get some assistance to find professionally supported ways of dealing with that and to see whether some further assistance would be useful and, if so, engage in it. That is for your benefit and if you deal with it positively, then it will be to your benefit.
The second thing is that your experience, getting a certificate in bakery, should be really useful to you. Hopefully, by January 2022, we will be out of lockdown. People will be back in hospitality. They will need the products of what a good baker can make. So, the prospects of you getting a job are not bad. But again, you have been in prison, you have got a shocking record. You will need some assistance to get employment, and I have suggested, again, that the Sentence Administration Board take some active steps to help you do that and that may be with a job provider.
There are now some job providers that do have the skills and the experience to deal with people who have been able to turn their lives around and put their criminality behind them. This is an opportunity for you. There is still some time in custody because what you did were bad things that must be punished and the community needs to be satisfied that, just because you have had a hard life and just because you have said you are going to do better, it is not all washed away.
Your offending has to be dealt with, but if you continue with the way you are going, I have every expectation and every hope that you will be granted parole, that you will be given the assistance, that you will be able to be with your fiancée and your child, that you will be able to get a job and that you will be able to start a life. At age 28 it is not too late to get into a world that you can make a good one for yourself and your family and contribute to the community and, indeed, to your culture with which you are starting to reconnect and which is an amazing heritage that you have and that hopefully will lead you into a constructive future.
So, I genuinely wish you all the best. I know this is a tough sentence. I know it has been a long time coming, but it is the best I can do in the circumstances and I hope that the courts will not see you again, except doing good things. I certify that the preceding sixty-nine [69] numbered paragraphs are a true copy of the Reasons for Sentence of His Honour Acting Justice Refshauge.