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Kelly v Crowe and Jolejole [2009] ACTSC 77 (9 July 2009)

Last Updated: 14 August 2009

IAN WILLIAM KELLY v DAVID ANTHONY CROWE and SHANE LUIS JOLEJOLE
[2009] ACTSC 77 (9 July 2009)

CRIMINAL LAW – Appeal from Magistrates Court – appellant convicted of offences including burglary, theft, riding in a vehicle without authority, driving whilst disqualified, failure to appear and breach of recognizance – offences retrospectively detected through use of DNA technology

SENTENCING – Appeal against severity of sentence – whether sentence was manifestly excessive – whether the principle of totality was correctly applied – whether the time the appellant spent in custody was adequately taken into account – whether the sentences served by appellant since the commission of historical offences were relevant – whether the Magistrate had the ability to re-open the sentencing proceeding – whether the Magistrate had the ability to amend the sentence in chambers without reference to the parties – appeal upheld on all grounds – appellant re-sentenced

Crimes (Sentencing) Act 2005 (ACT), ss 61, 63

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 80 of 2008

Judge: Higgins CJ
Supreme Court of the ACT
Date: 9 July 2009

IN THE SUPREME COURT OF THE )
) No. SCA 80 of 2008
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: IAN WILLIAM KELLY

Appellant

AND: DAVID ANTHONY CROWE and SHANE LUIS JOLEJOLE

Respondents

ORDER

Judge: Higgins CJ
Date: 9 July 2009
Place: Canberra

THE COURT ORDERS THAT:

1. Appeal be upheld.
2. Appellant be re-sentenced as follows:

(1) 2008/1728 – convicted sentenced to 9 months (amended from 18 months) – cumulative upon 2008/1731.

(2) 2008/1730 – convicted sentenced to 6 months imprisonment concurrent with CC 2008/1728 and disqualified from driving till a court orders otherwise.

(3) 2008/1731 – convicted, sentenced to 9 months imprisonment.

(4) 2008/1732 – convicted, sentenced to 9 months imprisonment concurrent upon 2008/1731.

(5) 2008/1733 – convicted sentenced to 4 months imprisonment concurrent upon 2008/1731.

(6) 2008/1734 – convicted sentenced to 4 months imprisonment concurrent upon 2008/1731.

(7) 2008/1735 – convicted sentenced to 9 months imprisonment concurrent upon 2008/1731.

(8) 2008/1737 – convicted sentenced to 4 months imprisonment concurrent upon 2008/1731.

(9) 2008/1738 – convicted sentenced to 9 months imprisonment concurrent upon 2008/1731.

(10) 2008/1739 – convicted sentenced to 4 months imprisonment concurrent upon 2008/1731.

(11) 2008/1740 – convicted sentenced to 9 months imprisonment concurrent upon 2008/1731.

(12) 2008/1741 – convicted sentenced to 4 months imprisonment concurrent upon 2008/1731.

(13) 2008/1742 – convicted sentenced to 3 months imprisonment cumulative upon 2008/1728 and disqualified from driving till a court otherwise orders.

(14) 2006/7748 – convicted and sentenced to 6 months imprisonment cumulative upon 2008/1728.

(15) 2008/2571 (breach of recognisance), cancelled resentenced to 22 days imprisonment cumulative upon the previous sentences.

3. The sentences commence on 4 December 2008 to take account of time spent in custody.
4. The sentence be suspended and the appellant be released as from today upon entering into a good behaviour order of 18 months.

1. The appellant, Ian William Kelly, on 3 September 2008, appealed from sentences imposed upon him by her Honour, Magistrate Doogan, on 7 August 2008. (The transcript refers erroneously to Magistrate Campbell as the presiding magistrate). Some of the offences for which the appellant was to be sentenced were some years old. They had been retrospectively detected by DNA technology and some were delayed because the appellant had been sentenced to imprisonment in South Australia.
2. The charges in the order they were preferred were:

(1) CC 2008/1728

... between 6 September 2002 and 9 September 2002 did enter ... Building 53 of the Australian National University ... as a trespasser with intent to steal therein.

(2) CC 2008/1730

... between 6 September 2002 and 9 September 2002 without lawful authority or excuse did ride in a vehicle ... white Ford Falcon ute bearing ACT registration YLU414, ...

(3) CC 2008/1731

... between 19 January 1999 and 20 January 1999 did enter ... Canberra Business Centre ... Kingston, as a trespasser, with intent to steal therein.

(4) CC 2008/1732

... between 19 January 1999 and 20 January 1999 did enter ... Express Advertising and Event Management Marketing within the Canberra Business Centre ... Kingston, as a trespasser, with intent to steal therein.

(5) CC 2008/1733

... between 19 January 1999 and 20 January 1999, did steal an IBM laptop computer to the value of [$3,600], belong to Express Advertising Event Management and Marketing.

(6) CC 2008/1734

... between 19 January 1999 and 20 January 1999, did steal ... [$143] in Australian currency belonging to Canberra Enterprises Employment Developement [sic] Association.

(7) CC 2008/1735

... between 19 January 1999 and 20 January 1999, did enter ... Bodywise Natural Therapies within the Canberra Business Centre, ... Kingston, as a trespasser, with intent to steal therein.

(8) CC 2008/1737

... between 19 January 1999 and 20 January 1999, did steal a Compaq Impressario Notebook computer and a JVC top shelf stereo ... value [$4,468], belonging to Bodywise Natural Therapies.

(9) CC 2008/1738

... between 19 January 1999 and 20 January 1999, did enter ... Canberra Counselling Services within the Canberra Business Centre ... Kingston, as a trespasser, with intent to steal therein.

(10) CC 2008/1739

... between 19 January 1999 and 20 January 1999, did steal Sony portable cassette player, ... [$100], belonging to Canberra Counselling Services.

(11) CC 2008/1740

... between 19 January 1999 and 20 January 1999 did enter ... Wordsworth Writing within the Canberra Business Centre ... Kingston, as a trespasser, with intent to steal therein.

(12) CC 2008/1741

... between 19 January 1999 and 20 January 1999, did steal ... [$138] in Australian currency, belonging to Wordsworth Writing.

(13) CC 2008/1742

... on 29 September 2006, ... did fail, without reasonable excuse, to appear before the Magistrates Court in accordance with his [bail] undertaking.

(14) CC 2008/7748

... on 27 August 2006, a repeat offender, did drive while disqualified.

(15) CC 2008/2571

... on 29th of November 2005 [was sentenced by Chief Magistrate Cahill] on a charge of theft ... and was convicted and sentenced ... to be imprisoned for a term of 3 months ... released forthwith upon his entering into a recognisance himself in the sum of $1000 to be of good behaviour for 2 years, that he, ... did on the 27 August 2006 commit the offence of drive while disqualified (CC 2006/7748) ... and was convicted of the said offence.

3. The 1999 offences (supra (3) – (12) inclusive) were committed when the appellant entered the Canberra Business Centre and broke into ten offices contained therein, being separate business premises. From seven of them property or cash was stolen.
4. The 2002 offences occurred when, between 6 September 2002 and 9 September 2002, the appellant broke into a building at the Australian National University. No theft took place but the appellant illegally removed a white Falcon utility. It was recovered on 26 September 2002. It had suffered minor damage. Its tonneau cover was missing.
5. On 27 August 2006, the appellant was charged with traffic offences (including charges of driving an unregistered and uninsured motor vehicle) as well as charge (14) above. On 11 September 2006 the defendant was bailed to appear on 29 September 2006. He did not do so. Instead he went to South Australia where he was imprisoned for other offences which he committed there. His DNA was taken and sent to ACT police, thereby linking him to the burglaries in 1999 and 2002 referred to above.
6. He was found in the Territory and arrested on 5 February 2008.
7. He made full admissions to police.
8. The appellant has a long criminal history dating back to 1981. He is now 44 years of age. He had, at least up until 2007, a considerable drug problem but was found to have used illicit drugs on at least three occasions in 2008.
9. The sentence in South Australia had been eight months imprisonment for motor vehicle and drug offences. He had been released on 31 August 2007.
10. Her Honour commenced her remarks by indicating that her sentences would total three years of imprisonment with a non-parole period of 18 months. For the breach of recognisance an additional 22 days was imposed. The other sentences were expressed to commence on the sentencing date. The 22 days represented the period the appellant had spent in custody before sentencing after his arrest. Thus the sentences were recorded as being from 5 February 2008 for the breach matter and then from 7 August 2008 for the remaining matters.
11. Notice of Appeal was filed on 3 September 2008. It complained that the sentences were, in total, excessive and did not adequately or at all (save for the 22 days above referred to) take account of time spent in custody whilst some at least of the matters were pending.
12. That latter ground refers to the matters for which the appellant was on bail at the time he failed to appear and to the period of eight months in custody in South Australia during which he remained on bail for the Territory offences.
13. In addition to that circumstance, it was conceded by the respondent that the learned Magistrate, had, in fact, pronounced head sentences adding up to 33 months, not 36 months.
14. Section 61 of the Crimes (Sentencing) Act 2005 (ACT) (Crimes (Sentencing) Act) does permit a court (per s 61(3)) to –

... reopen the [sentencing] proceeding (on the application of a party to the proceeding, or on its own initiative) and may, after giving the parties an opportunity to be heard, do either or both of the following
...
(b) amend any relevant finding of guilt, sentence or order.

15. Her Honour amended the Bench Sheet in chambers to add three months to the total of the head sentences without reference to the parties (see AB73). It follows that the amendment was made beyond power.
16. The true error to be corrected was, of course, the imposition of 36 months rather than 33 months as the total head sentence. If 33 months had been the intended result, the non-parole period might have been affected.
17. The sentences imposed for the 1999 burglaries, occurring in the same building, were concurrent as were the sentences for the associated thefts. The head sentence of nine months was accepted as reasonable.
18. Mr Archer did complain of the sentence in respect of the 2002 matters. He contended that 18 months was excessive, particularly compared with the 1999 matters. It had not been attended by a theft and, although a vehicle was taken illegally, the sentence for that offence was rightly concurrent with the 18 months.
19. With respect, I agree. The sentence of 18 months was both excessive and disproportionate. I would re-sentence the appellant to nine months for that offence concurrent with the illegal use of the motor vehicle. It was certainly no more egregious an offence than the 1999 matters.
20. There were then the traffic matters, followed by the failure to appear. For the traffic matters, being drive vehicle whilst disqualified, the learned Magistrate imposed a sentence of six months. It was pronounced as cumulative on the sentence already imposed upon 2008/1728. For the failure to appear a further three months, cumulative, was imposed. That totalled 33 months. It had apparently, been her Honour’s intention, as revealed by the amendment she made to make those sentences cumulative upon each other and on 2008/1728.
21. It was submitted that, in any event, the total accumulation of all those sentences was excessive, having regard to the fact that, had the 1999 burglaries been detected when the appellant had been dealt with for similar offences in 1999, little, if any, additional penalty would have been imposed. He had been sentenced to 12 months for burglary and related offences on 12 November 1999 commencing 27 September 1999 by Magistrate Dingwall.
22. Had the 2002 offences come to light before 2006, there were several occasions, including April 2003 before Chief Magistrate Cahill (12 months imprisonment for burglary), when those matters could have been subsumed in those sentences. Indeed, as far as the latter matter is concerned, that sentence was increased on appeal before me on 2 July 2003 to 15 months, non-parole nine months, albeit parole eligibility may have ameliorated that situation.
23. Further, though for other offences, the appellant had served eight months in custody in South Australia. It was that custody which led to the belated discovery of the 1999 and 2002 offences. That custody, even if not required to be taken into account by s 63(2) of the Crimes (Sentencing) Act was, nevertheless, relevant.
24. As at this date, the appellant has served 195 days of the sentence her Honour imposed. He was, on 18 February 2009, granted bail on humanitarian grounds as he had sustained a severe heart attack leaving him considerably disabled. In those circumstances and, given the errors found, the appellant’s appeal must be upheld and the appellant re-sentenced.
25. The sentences to be imposed are amended as follows: