STATE OF TASMANIA v BARBARA ANN KELTY 20 MARCH 2023
COMMENTS ON PASSING SENTENCE BRETT J
Ms Kelty, you have pleaded guilty to one count of assault.
You committed the crime on 19 July 2022. The complainant is a taxi driver who was working in the Glenorchy area at the relevant time. At about 9:20 pm, you entered the complainant’s taxi and sat in the front passenger seat. The complainant started the meter, but you stopped it and told him to drive. When he asked why you would stop the meter, you told him that you would stab him. You then reached into your handbag and took out a kitchen knife, which was in a sheath. You took the knife out of the sheath and again threatened to stab the complainant. You made threatening gestures with the knife at the same time. When the complainant drove off, you put the knife back in your handbag but soon took it out again. You attempted to manipulate the meter again, gave the complainant another address to drive you to and again threatened to stab him. For a third time, you put the knife back in your bag, and then took it out again, and threatened to stab the complainant, while making stabbing motions towards him. Eventually the complainant was able to escape from the taxi and call the police. You were arrested soon after.
I have received an impact statement from the complainant. He was understandably terrified and has been affected by what you did. There has been a significant financial impact on him because he stopped working as a taxi driver for a period and also left another job. Although he has now returned to taxi driving, he continues to experience fear and anxiety arising from his memory of this experience. I accept all of this as the actual impact of your crime. It is exactly what one would expect to arise as a result of the commission of such a crime.
You have a long criminal history, which includes a lengthy history of committing offences involving violence. The bulk of your offending commenced in 2014, which is coincident with a sexual assault perpetrated upon you. After that time you have on a continuous, almost uninterrupted basis committed offences involving disorderly conduct, injury to property and in particular personal violence. Many of the persons assaulted have been police or correctional officers. You have also been convicted on numerous occasions of breaching lawful restraints, such as restraining orders and bail conditions. The sentences imposed on you have usually involved imprisonment, sometimes suspended but on many occasions actually served by you. A significant number of the offences involve assaults committed by you while you were in custody. In more recent times, the seriousness of the offending has escalated. On 10 December 2021, a judge imposed a sentence of 15 months’ imprisonment, 10 months of which was suspended for a period of two years along with a community correction order for the crime of attempted robbery. The facts of that crime were almost identical to those in this case. The judge commented when he suspended the sentence that he was providing you with an opportunity to break the cycle of offending that you had fallen into, but also warned you that it was your last chance because the court would eventually run out of alternatives. You committed this crime approximately eight months after that sentence was imposed on you.
This pattern of continuous violent offending has been the subject of a number of reports prepared over a considerable period of time. I was persuaded to obtain a further report from the Chief Forensic Psychiatrist with a view to assessing the psychological factors which underlie your offending, and investigating whether and if so how the court can respond in an effective way. The report draws upon and reflects much of the information contained in earlier reports. The starting point seems to be that your level of general intellectual functioning falls into an extremely low range, which meets the criteria for mild intellectual disability. You come from a large family and, in childhood, had good relationships with your parents and siblings. However, you did suffer bullying at school. In 2010, your mother suffered serious illness and she passed away in 2020. This understandably was a significant source of trauma and grief for you. In 2014, when you were 22 years of age, you were the victim of a sexual assault, for which the perpetrator was sent to prison. It seems that this was the catalyst for a serious and sustained decline in your psychological health and your behaviour. You have since been diagnosed with post-traumatic stress disorder, and you have engaged in self-harm and suicidal behaviour. You also responded to the trauma by abusing alcohol. Your current diagnosis includes an alcohol abuse disorder. Indeed, the psychiatrist considers that your abuse of alcohol is “the primary driver of” your problems. It is clear that intoxication from alcohol has provided the context for much of your violent offending. This case is no different.
None of this provides any basis for a reduction in your moral culpability for this crime. The psychiatrist, consistent with earlier reports, considers that your offending was not driven by the ongoing symptoms of your post-traumatic stress disorder, except in the sense that the loss of your mother and the sexual assault provided the basis for your development of an alcohol abuse disorder. However, the report does raise significant questions about your capacity to cope when in custody and the impact of custody upon your rehabilitation. When in custody you engage in self-harm and other violent behaviours and quite simply do not cope well in the custodial environment. The psychiatrist put it this way “put bluntly incarceration is not reducing Ms Kelty’s risk of harm and might be enhancing it. As a secondary outcome to her harmful behaviours, Ms Kelty’s risk of reoffending might also be increased.”
The psychiatrist also examined options for your support in the community. At the time of this offending, you were living in fully supported accommodation which seems to have been funded by an NDIS package. This was not sufficient to successfully prevent you from using alcohol and reoffending. The psychiatrist has recommended you be accommodated in secure housing with appropriate supervision. Appropriate supervision would seem to involve full-time supervision provided by more than one person. However, there is no publicly funded option that would permit this and it is not clear that this would be funded through the NDIS. Certainly, it is not something that can be achieved by the Court.
I consider that the options for rehabilitation are limited by the resources that would be available to the community correction authorities and by your history of poor compliance with community based orders. I consider it likely that any attempt at further correction based in the community would be unsuccessful. It essentially depends largely on your capacity to refrain from abusing alcohol and I am just not satisfied that in a community based situation that that would be able to be adequately supervised, even in relation to the option of home detention.
The other point that must be made is that your rehabilitation is not the only sentencing consideration. Punishment, general deterrence and protection of the public are also important. Taxi drivers, in particular, are vulnerable to crimes of this nature. You directly threatened this man on more than one occasion with a weapon. The objective seriousness of the offending and your moral culpability for it are very high. In the circumstances of this case, there really is no alternative to the imposition of a significant term of imprisonment.
Further, the crime was committed in breach of the suspended sentence that I already have referred to, as well as a further suspended sentence of three months which was imposed as part of the sentence imposed on 26 May 2022. This sentence was imposed for serious offences of violence, some of which were committed by you against correctional officers while you were in prison. The law requires that the sentences be activated unless I am of the opinion that it would be unjust to do so. There is no basis upon which I could properly form that opinion, and accordingly those sentences must be activated.
Accordingly, the orders I make are as follows:
- You are convicted of the crime to which you have pleaded guilty;
- The suspended sentence of imprisonment for 9 months and 23 days imposed on 10 December 2021 is activated. It is backdated and will be served from 19 July 2022. You are not eligible for parole in respect of that sentence until you have served one half of the sentence.
- The suspended sentence of imprisonment for 3 months imposed by the Magistrates Court on 26 May 2022 is activated. It will be served cumulatively upon the activated sentence imposed on 10 December 2021. You are not eligible for parole in respect of this sentence until you have served one half of the sentence.
- For the crime of assault, you are sentenced to 18 months imprisonment. The sentence will be served cumulatively upon the activated sentence imposed on 26 May 2022. You are not eligible for parole in respect of this sentence until you have served one half of the sentence. In allowing the minimum non-parole period I have done so deliberately in order to enhance the opportunity for the Parole Board to consider and pursue rehabilitative options in the community. Under parole there would be a greater capacity for supervision to be effective and if it is unsuccessful, for the parole to be revoked.
- For the purposes of s 92A(3) of the Sentencing Act, I specify that the total term of imprisonment which you are liable to serve in respect of all of the above sentences is 30 months and 23 days commencing on 19 July The non-parole period is one half of that cumulative period.
- I make the forfeiture order in respect of the knife which was sought by the prosecution.