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District Court 9 April 2020

R v Kelly

[2020] NSWDC 349

Assault & violenceTheft & property
CRIME SENTENCE FORM 1 MATTER COMMON ASSAULT HIGH RISK OF RE OFFENDING

Citation: R v Kelly [2020] NSWDC 349
Court: District Court of New South Wales
Date: 9 April 2020
Judge: King SC DCJ

Background

The offender, a 43-year-old man, appeared for sentencing on a charge of entering land with intent to commit a serious indictable offence while having a previous conviction for a serious indictable offence, contrary to s 115 of the Crimes Act 1900. The maximum penalty for that offence is ten years' imprisonment. A related charge of common assault was listed on a Form 1, meaning it was taken into account in determining the overall sentence without being the subject of a separate conviction.

The offending occurred in the early hours of 3 May 2019. The offender climbed onto the balcony of a residential townhouse in Campsie while the occupants were asleep, intending (by inference) to steal from within. He was disturbed when one of the occupants turned on a light, fell from the balcony from a height of approximately three to four metres, and sustained a serious arm fracture. As he attempted to flee on a bicycle, the male occupant gave chase. When caught, the offender raised his fist, swung at the victim, and connected at least once with his face before being restrained until police arrived.

The offender pleaded guilty at an early opportunity and was entitled to a 25% discount on sentence. At the time of the offending he was on parole, which was subsequently revoked.

  • What was the appropriate objective seriousness of the primary offence and the Form 1 common assault?
  • What weight should be given to the offender's deeply troubled background, including childhood trauma, institutionalisation, and long-term drug dependence?
  • How should the court balance specific and general deterrence against limited but not entirely absent prospects of rehabilitation?
  • What role, if any, should extra-curial punishment (the serious injury suffered in the fall) play in the sentencing exercise?
  • Was a non-custodial alternative appropriate, or was full-time imprisonment the only option?

Decision

King SC DCJ assessed the primary offence as falling above the low range but below the mid-range of objective seriousness. The entry was deliberate, occurred at night while occupants were present and asleep, and would have required a breaking to complete. The court inferred the purpose was theft. The common assault, while a real act of aggression, caused no significant injury to the victim.

The offender's subjective circumstances were extensively canvassed. His background included the early loss of a violent stepfather, the death of his biological father at age 13, expulsion from school, being asked to leave home at 14, exposure to criminal behaviour and drug use by a relative, and an alleged sexual assault while in juvenile detention. The court acknowledged these matters as genuinely relevant to the offender's trajectory, while noting a long, uninterrupted history of offending and a pattern of what the judge described as contumelious disregard for the law. The psychological evidence indicated a high risk of reoffending. The offender had become institutionalised, having spent the great majority of his adult life in custody.

The court accepted that the offender's serious arm fracture, requiring surgery and the insertion of a plate, constituted extra-curial punishment (punishment already suffered outside the formal sentencing process). Consistent with the principles in R v Moffatt, this was treated as a mitigating factor, though not a dominant one. Rehabilitation prospects were described as poor to moderate, and while some positive indicators existed, including support from Cana Communities and the offender's own expressed intentions, the court found them insufficient to substantially reduce the weight given to deterrence and community protection.

Full-time imprisonment was the only appropriate disposition. The court applied the 25% plea discount, adjusted the non-parole period downward by three months to account for time spent in custody before the sentence commencement date, and fixed the total term at three years with a non-parole period of two years.

Orders Made

  • The offender was convicted of entering land with intent to commit a serious indictable offence, having a prior conviction for a serious indictable offence, contrary to s 115 of the Crimes Act 1900.
  • The Form 1 matter (common assault, contrary to s 61 of the Crimes Act 1900) was taken into account.
  • Sentence of three years' imprisonment, commencing 29 November 2019 and expiring 28 November 2022.
  • Non-parole period of two years; first eligible for parole on 28 November 2021.
  • Balance of term: one year.

Key Takeaways

  • The District Court confirmed that extra-curial punishment, here a serious arm fracture sustained during the offence, is a recognised mitigating factor in sentencing, consistent with the principle in R v Moffatt, though its weight depends on the overall circumstances.
  • A deeply troubled background, including childhood trauma, early exposure to criminality, and long-term institutionalisation, was treated as relevant subjective mitigation without displacing the primacy of deterrence and community protection where the offending history was extensive and uninterrupted.
  • Where an offender has spent the majority of their adult life in custody and psychological evidence points to a high risk of reoffending, sentencing courts may find that specific deterrence carries heightened weight even against genuine subjective hardship.
  • A 25% discount for the utilitarian value of an early guilty plea was applied in accordance with R v Thomson; R v Houlton, with no suggestion of additional discount beyond that figure.
  • Entry onto residential premises at night while occupants are present, with intent to steal, and accompanied by violence during flight, was assessed as above the low range of objective seriousness for a s 115 offence, even where the entry itself was not completed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 114, 115
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5

Cases
- R v Fernando (2002) NSWCCA 28
- R v Huynh (2003) NSWCCA 239
- R v McVittie [2002] NSWCCA 344
- R v Moffatt [1990] 20 NSWLR 114
- R v Thomson; R v Houlton [2000] 49 NSWLR 383