R v Kelly; R v Ngati [2019] NSWDC 521

District Court New South Wales

Medium Neutral Citation: R v Kelly; R v Ngati [2019] NSWDC 521 Hearing dates: 6 September 2019 Decision date: 20 September 2019 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Re - Kelly: Imprisonment for 2 years 9 months with a non parole period of 1 year 8 months. Re - Ngati: Imprisonment for 2 years to be served by means of an Intensive Corrections Order. Catchwords: CRIME - SENTENCE- break and enter with intent to commit serious indictable offence Legislation Cited: Crimes Act 1900 (NSW), s.113(1) Category: Sentence Parties: Regina (Crown)

Jesse Kelly (Offender)

John Ngati (Offender) Representation: Mr Carnell (ODPP Campbelltown)

Mr Townsden (for offender Kelly)

Mr McLachlan (for offender Ngati) File Number(s): 2018/357881 (Kelly); 2018/357936 (Ngati) Publication restriction: Nil

Judgment 1. Jessie Kelly and John Ngati, you both appear for sentence today in relation to the same offence, namely, break and enter with intent to commit serious indictable offence, the serious indictable offence being larceny. 2. These involve contraventions of s 113 (1) of the Crimes Act. 3. The maximum penalty for that offence is 10 years imprisonment and there is no standard non-parole period. 4. The facts surrounding your offending are, to a large extent, contained in an agreed statement of facts supplemented by the contents of psychologists reports tendered on your behalf and the oral evidence of each of you. 5. The facts surrounding your offending conduct may be stated as follows. 6. In about 2014, Mr Kelly, you became indebted to an outlaw motorcycle gang in connection with your illicit drug habit. 7. The amount of your debt as at September 2018 was approximately $20,000.00. 8. At some time before 12 September 2018, one or more members of that outlaw motorcycle gang contacted you and made you an offer – namely, that if you broke into premises of persons alleged to be drug dealers, stole drugs and provided those drugs to that gang, your debt would be wiped out. 9. You approached your ex-partner, Ms Bailey, and asked her if she knew anybody who could do a break and enter on a dealer as you yourself were reluctant to be directly involved. 10. Ms Bailey knew you, Mr Ngati, and it was arranged that you, Mr Kelly, would collect Ms Baily and Mr Ngati and drive them to the premises which were to be broken into. 11. On your way to those premises, Mr Kelly, you stopped at a store of a well-known hardware chain where you purchased a crowbar and a screwdriver. 12. The three of you then travelled to the subject property which was in the Sydney suburb of Gledswood Hills. 13. You, Mr Kelly, parked the motor vehicle. Ms Bailey got out, went up to the premises and knocked on the door. When she was satisfied that the premises were empty, she walked back to the motor vehicle. 14. It was then that you, Mr Ngati, got out of the motor vehicle and went to the premises. Using the crowbar, you jimmy-opened a glass sliding door forcing the locked door to slide open and you then entered the premises. 15. The premises were alarmed and your entry into the premises set that alarm off. 16. You then ran back out of the house and got in the car which Mr Kelly drove away in. 17. You were both arrested on 21 November 2018. 18. Mr Ngati, you became involved in this criminal enterprise because you knew Ms Bailey reasonably well and she seems to have exploited your long-term mental illness (schizophrenia) and your then desperate need for money. 19. In terms of the objective seriousness of the offence for an offence of its kind, it is somewhere equidistant between the middle of the range and the bottom of the range. 20. Although Mr Ngati, you were the actual one that committed the break, it was you, Mr Kelly, who was the main organiser, who purchased the breaking equipment, and who was the driver. Your moral culpability is, therefore, greater than Mr Ngati's - even though you are equally criminally liable. 21. Mr Kelly, your offending is additionally aggravated by the fact that you were on parole for an offence of armed robbery. 22. Mr Ngati, your offending is additionally aggravated by the fact that you were on two s 9 bonds. 23. Each of you had a dysfunctional upbringing which is set out in detail in the psychological report tendered on behalf of each of you. You have both sworn to the truth of those reports. You were not cross-examined on that aspect of the reports. I accept them as proven facts. Your moral culpability is reduced in the manner directed by the High Court in R v Bugmey. Neither of you, therefore, is an appropriate vehicle for the full application of general deterrence – although it still has some application. Specific deterrence and the protection of the community are considerations, however, which are fully engaged. 24. Mr Kelly, you are now 35 years old and Mr Ngati you are 24 years old. 25. Mr Kelly, you have had a significant criminal history; and as I have said you were on parole at the time of this offence. That parole was revoked and you are serving the balance of the sentence which expires on 27 January 2021. 26. Your criminal history, however, is not an additional aggravating factor. 27. Mr Ngati, you also have a criminal history as an adult, but it is nowhere near as serious as the one for Mr Kelly. It is also not an additional aggravating factor. 28. Mr Kelly, your dysfunctional background has led to a long-term involvement with illicit drugs. But you have in recent times made serious efforts to get your life back on track. In fact, three months before the offending which brings you to Court today, you obtained your first job – as a dogman, a skilled job which you enjoyed and which you intend to follow up upon your release. 29. You are also serious about addressing your long-term drug issues. 30. You have expressed genuine remorse and you have a new partner and a daughter with her. 31. In all the circumstances, I regard your prospects of rehabilitation as being reasonable. They would be enhanced by a longer period on parole. For that reason, and because you are in protection to keep you from being further exploited by the outlaw motorcycle gang, I find special circumstances to vary the ratio of the head sentence to the non-parole period. 32. It follows, therefore, that I am satisfied that the s 5 threshold has been crossed and that no sentence for you other than one of full-time imprisonment is appropriate. 33. You will, however, be given a 25 per cent discount off that sentence because of your early plea. 34. Mr Ngati, your dysfunctional background also caused you to have a long-term involvement with illicit drugs. Furthermore, you have below average cognitive functioning level, which may well be the result of an appalling attack on you by your own mother when you were only two years of age. You also have a significant mental health issue (schizophrenia) which is managed with legitimate medication. 35. You had a reasonable work history until a motor vehicle accident in 2016 in which you injured your lower back. Nevertheless, you still wish to work, and you hope to return to New Zealand after you have served your sentence to work with your father in employment which will not be impeded by your back injury. 36. You have also expressed remorse in the witness box. Notwithstanding the contents of the sentencing assessment report, I accept that those expressions of remorse were genuine. 37. I also regard your prospects of rehabilitation as being, on balance, reasonable. 38. I am also satisfied that for you the s 5 threshold has been crossed. 39. You too will receive a discount of 25 per cent because of your early plea. 40. Jesse Kelly, of the offence of break and enter with intent to commit serious indictable offence, you are convicted. 41. Except for your plea of guilty and the consequential discount of 25 per cent, I would have sentenced you to a term of imprisonment of 3 years 9 months. However, because of that discount, the term of imprisonment will be 2 years 9 months. 42. I fix a non-parole period of 1 year 8 months to date from 27 January 2020 and which will expire on 26 September 2021. 43. I fix a balance of 1 year 1 month to date from 27 September 2021 and which will expire on 26 October 2022. 44. John Ngati, you also are convicted of the offence of break and enter with intent to commit serious indictable offence. 45. Except for your plea of guilty, I would have sentenced you to a term of imprisonment of 2 years 8 months. Because of the discount of 25 per cent the term of imprisonment is 2 years. 46. I am satisfied, by having regard to community safety, that the making of an intensive correction order as the means of serving the sentence is more likely to address your risk of offending. 47. There are two standard and mandatory conditions to any and every intensive correction order. They are: first, that the offender must not commit any offence; and secondly, that he must submit to supervision by a Community Corrections officer. 48. In addition to those two mandatory conditions, there must be at least one additional condition, unless there are exceptional circumstances (which is not the case). 49. I impose the following additional three conditions. First, you are to abstain entirely from all illicit drugs, alcohol, or lawful drugs which are not prescribed for you by a medical practitioner. Secondly, you are to undertake, and satisfactorily complete, any supervision plan which might be organised for you by the Department of Community Corrections. To this end, I direct that the Registry send a copy of Exhibit 1 (N) to the officer in charge of Liverpool Community Corrections office. Thirdly, you are to report to the officer in charge of that office before 4:00pm, 23 September 2019. 50. Your sentence starts today. 51. Mr Ngati, if you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning; the imposition of more stringent conditions; or it may involve the revocation of this order. If this order is revoked, you may be required to serve all or some of the period of your sentence in full-time custody. 52. You are now directed to attend the Court Registry where a copy of this order will be further explained and given to you. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 September 2019