R v Shelley [2017] NSWDC 376

District Court New South Wales

Medium Neutral Citation: R v Shelley [2017] NSWDC 376 Hearing dates: 8 December 2017 Date of orders: 08 December 2017 Decision date: 08 December 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is sentenced to imprisonment for a period of 7 years with a non-parole period of 5 years. I refer Mr Shelley for assessment as to his suitability to enter the compulsory drug treatment program. Catchwords: CRIMINAL LAW – Sentence – Form 1 – Break enter and steal – Serious home invasion – Armed robbery – Actual bodily harm Cases Cited: Bugmy v The Queen [2013] HCA37; (2013) 249 CLR 571 R v Fernando (1992) 76 ACrimR R v Henry (1999) 46 NSWLR 346, (1999) 106 ACrimR 149 Category: Sentence Parties: The Crown Keenan Shelley Representation: Counsel: Ms S Fernando – The offender

Solicitors: The Director of Public Prosecutions – The Crown File Number(s): 2016/349493

Judgment 1. HIS HONOUR: The Courts see people like Mr Shelley with distressing frequency. Mr Shelley is one of those offenders who, due to his repeated offending, has spent a great deal of his adult life in custody, so much so that when he is released from gaol he has difficulty living in the community, often leading to early reoffending and, returning to custody in a manner akin to a revolving door. 2. Ultimately, it is only this offender Mr Shelly himself who can get out of the revolving door. Corrective Services can provide as much assistance as they can, but if Mr Shelly wants to begin to enjoy life as a free man he has to make some difficult decisions, the most important of which is that he will actually make efforts to avoid committing offences in the future. 3. The offences I am about to describe were of great seriousness. They were all committed at about the same time, one is to be the subject of a specific sentence, while the others appear on a Form 1 attached to that offence. 4. The first offence is one on a Form 1. The offender went to some premises in Haymarket on 22 November 2016. He managed to get onto the balcony of a particular apartment. The resident awoke to a knocking noise. He went to have a look at what was going on and saw the offender climbing from his balcony to another rooftop. The offender had clearly entered a building and his clear intent was to commit a serious indictable offence, namely, to break, enter and steal. 5. He then moved on to a different apartment in the same complex, this is where an offence of very great seriousness was committed by the offender. It is properly described as a home invasion and it is a most serious example of that offence. Once again the resident was awoken by some noise. He became aware that there was someone in his living room. The offender had broken in, gone to the kitchen and taken out two knives, one a 30 centimetre kitchen knife. 6. Not surprisingly the resident was scared. He remained in his bed. The offender came into the bedroom and leant over towards the resident who saw that he was armed with a knife. The offender made his intentions clear by saying "give me all the money, give me all the cash or I'll kill you". Sensibly the resident said, "I'll give you everything. I'll give you everything". He took his wallet out and gave the offender $400. 7. The offender was not to be deterred or dissuaded from further criminal activity, he said, "Car keys. Give me your car keys". The resident replied that he did not even own a car. The offender then took a large quantity of other material, two mobile phones, a backpack, bank cards, a speaker, an iPod, a watch and a laptop. 8. Once again, the offender was not satisfied. He told the resident to open a cupboard. When he did so, the offender saw a small safe. He insisted that the resident open the safe. The resident said he did not know the code and asked him to leave. The offender was not happy with this response and he started hitting the resident a number of times with the hand in which he was holding the knife. The offender hit the resident's face, his left bicep and punched his chest. The offender then said, "I will kill you. I will kill you. I will cut you" and again hit the resident. 9. Matters escalated significantly. The offender grabbed the resident around his neck and held the knife blade to his throat. The resident considered that he could die at any moment. The offender said, "I will kill you right now if you don't open it. I will kill you". Sensibly the resident then unlocked the safe. From it the offender took more money, a passport, a credit card, another watch and various personal papers. He then left after insisting that the resident get him a taxi. 10. Police were of course called and using the find my iPhone feature police eventually caught up with the offender but not before he had got a taxi and used the resident's credit card to pay for the taxi ride. When police finally stopped him they found some of the property that he had stolen as well as something he had taken from other premises, a hotel in the Sydney CBD. 11. The offender said a number of things to police including this, "get me some water, I'm gone, I'm going for four years". That is an underestimate of the sentence that I will eventually impose upon him. Other things the offender said was "just fuckoff, I've just done a home invasion and I just almost cut a guy's head off". Those statements to police were more accurate than his assessment of the sentence he would ultimately get. 12. It is undeniable that, as one of the psychologists said, he has had an extremely disadvantaged start to life. His father was often physically assaulting him, his siblings and his mother whilst drunk. That violence only stopped when his father was arrested for sexually assaulting three of the offender's sisters, one of whom later committed suicide as an adult. The offender's mother suffered a stroke and was unable to care for the children who were then placed in foster care. 13. In Ms Fernando's written submissions she says this, "from early childhood Mr Shelley experienced abuse in every environment where he should have been protected". Sadly, that is very much the truth. He was made a ward of the State at the age of ten. He lived in Boys' Homes, foster care houses and juvenile detention. He was neglected, emotional abused, sexually and physically assaulted in these institutions, and rather than receiving counselling for the trauma he experienced as a child he was incarcerated, experiencing further abuse and feelings of helplessness and anger. 14. He spent some time at the notorious "BoysTown" in Queensland, later being compensated for that experience. This is very much one of those cases where the principles of R v Fernando (1992) 76 ACrimR and Bugmy v The Queen [2013] HCA37; (2013) 249 CLR 571 apply without question. Not all of us have the same choices in life. Mr Shelley's choices in life were very much influence by his extremely disadvantaged start to life. 15. Another aspect of Mr Shelley's choices in life concerns when he started using drugs. He was only 12 years of age when he began to use heroin having been introduced to that drug by a friend of his father's. He has had problems with drugs, not surprisingly, ever since. His lengthy history of drug use commencing at only 12 years of age is, consistent with the decision in R v Henry (1999) 46 NSWLR 346, (1999) 106 ACrimR 149, a mitigating factor in this case. 16. Consistent with what the offender told police he pleaded guilty at the earliest opportunity. The sentence I impose upon him will be 25% less than it would otherwise have been. At the time he committed this offence he was on a suspended sentence from the Drug Court for similar offences and he was on parole as well. 17. He has a number of earlier convictions for offences such as break, enter and steal, possessing housebreaking instruments, aggravated enter a dwelling and aggravating break, enter and commit serious indictable offence in company. 18. The offence to which he has pleaded guilty carries a maximum penalty of 20 years with a standard non-parole period of five years. I have taken into account both the standard non-parole period and the maximum penalty in determining the sentence I will impose upon Mr Shelley. 19. As far as the objective gravity of Mr Shelley's conduct is concerned it has to be borne in mind that the offence for which he is to be sentenced covers a very wide range of criminal behaviour. There are various aggravating circumstances and there are very many serious indictable offences that a person can commit once they have broken into other premises. Here I note that the serious indictable offence was an offence of armed robbery, one of the most serious offences on the criminal calendar and I note also that the circumstance of aggravation was that he caused actual bodily harm through the infliction of violence whilst in someone else's home. Objectively this is well above the middle of the range of objective gravity. 20. One of the psychological reports suggests that Mr Shelley lacks insight into the consequences of his behaviour. When he spoke to the psychologist who asked him about this offence it appeared that he really did not understand the seriousness of what he did. And even when he gave evidence today and he was asked how he felt about what he did, his answers ignored the considerable violence he inflicted upon his unfortunate victim. However, as Ms Fernando accurately points out his problems with empathising with the victims of his crimes are likely to be related to the way he was brought up. 21. Another thing that Mr Shelley said when giving evidence concerns his difficulties living in society as opposed to living in custody. He finds it difficult to live when he is not in gaol. At times he seems to have committed offences simply so he can go back into custody. That appears to have been one of a number of factors influencing his decision to do what he did on 22 November 2016. 22. Other factors seem to be the circumstance that he was heavily using drugs and so his mental functioning was disturbed. He needed, of course, to finance his addiction. He gave evidence that he had been using drugs and funding their purchase through crime. Another thing he told the psychologist is that he seems to have committed this offence "out of habit". There is little difficulty in finding that the offender demonstrates a continuing attitude of disobedience towards the law. 23. A few years ago he was diagnosed with testicular cancer that was treated and he is now in remission. For a while he was subject to regular scans which for obvious reasons caused him great anxiousness when they needed to be done. 24. He has been assessed as having an overall level of intellectual functioning which places him in the 3rd percentile. There is less of a need to include a substantial component of general deterrence in the sentence I will ultimately announce because of that. 25. Ms Fernando submitted that if appropriate I should refer Mr Shelley to the compulsory drug treatment program but emphasised that she was not at all suggesting that I should formulate a sentence with that in mind. As it turns out I think he is eligible given the sentence I will shortly announce but I emphasise that that is a matter which had not determined my selection as to the length of the appropriate sentence. 26. There are modest special circumstances in this case. In making that finding I am balancing two considerations. The first is that as is evidenced perhaps best by the fact that he committed this offences whilst he was on parole, letting him out earlier through a finding of special circumstances risks the consequence that he will simply commit new offences earlier. On the other hand if he is to be assisted to remain out of gaol, if he is to make the decision himself that he is going to do something about the rest of his life to avoid spending most of it in custody, then he will need an extended period of supervision on parole. 27. Ultimately one of the most important constraints on a finding of special circumstances is that I consider that the non-parole period I will shortly announce is the least which properly reflects the objective gravity of the offender's serious criminal behaviour. 28. I will commence the sentence from 22 November 2016 the day on which the offender committed this offence and the day on which he was arrested. 29. I note that whilst bail refused for this matter he has been dealt with for the Drug Court matters. I note also that he was on parole. It would be double counting to regard them as seriously aggravating factors and also to commence the sentence such that only time in custody exclusively referrable to this offence is taken into account, that is why I have decided to commence the sentence when I have. 30. I set a non-parole period of five years and a head sentence of seven years to date from 22 November 2016. 31. The offender is thus eligible to be released to parole on 21 November 2021. 32. I refer Mr Shelley for assessment as to his suitability to enter the compulsory drug treatment program.