STATE OF TASMANIA v BARBARA ANN KELTY 10 DECEMBER 2021
COMMENTS ON PASSING SENTENCE ESTCOURT J
The defendant Barbara Ann Kelty has pleaded guilty to one count of attempted robbery and I have agreed to deal with one charge of assaulting a police officer, a summary offence, pursuant to s 385A of the Criminal Code.
On 26 March 2021 the defendant was at the Valern Hotel in Moonah. At around 11:45pm she called a taxi.
The complainant, Pushpinder Pushpinder, responded to the request for the taxi. He arrived at the hotel at approximately 11:49pm. The defendant and an unknown male got in the taxi. The defendant sat in the front seat. They asked to be driven to the Elwick Hotel. When they arrived at the Hotel, the male got out of the taxi without paying anything towards the fare. The defendant stayed in the taxi. After the male left she reached over to the taxi meter and paused the fare, without asking or saying anything.
The complainant told the defendant that she could not turn off the fare. The defendant told the complainant that her male companion would come out and pay it. However she started abusing him and calling him a “dickhead”.
The male returned and paid the fare. The defendant asked to be taken to another address, this time in Tolosa Street Glenorchy. The complainant told her that he was not going to take her, and she needed to get another taxi because she was abusive to him.
The defendant did not respond verbally however she hit the complainant with her left hand (her right hand was injured and in a sling). The defendant hit the complainant three times to the head and tried to take the coins that were in a cup holder.
The complainant tried to stop the defendant. She punched him three more times to the head with her left hand, whilst trying to take the coins again. At this time another female was in the car park and the complainant asked her to call police.
The defendant began exiting the taxi and at the same time she spat at the complainant, with some saliva landing on his arms. The complainant drove the vehicle forward, closed the door and drove off a short distance.
Police arrived and the defendant was taken through to the remand centre to be searched. Whilst the search was being conducted, the defendant kicked out at Senior Constable Bernadette Heyward, striking her in the head. Senior Constable Heyward felt immediate pain and discomfort however she suffered no lasting injury as a result of being struck.
The defendant was formally charged on 27 March 2021 and she has been in custody since that date.
This is a tragic case. Prior to 2015, the defendant only had two prior offences on her criminal record, including possessing an open container of liquor in a public street and failing to comply with a direction of a police officer. Since April 2015 however, has a number of offences including several charges of disorderly conduct, using abusive language to a police officer, resisting a police officer, failing to comply with directions of a police officer and breaching of bail. She also has one conviction for using a carriage service to harass or offend. Since she has been in custody she has served a short sentence of imprisonment attributable, to I am told, to not dissimilar offending.
She has also been before the courts for a number of offences including several breaches of a restraint order, assaulting police, breaching bail and injuring property.
In October 2014, the defendant was the victim of rape by a perpetrator who was subsequently convicted of the assault. This precipitated her into a difficult period in her existence. She became socially withdrawn and her alcohol consumption increased. There was some evidence of alcohol use prior to October 2014 but her new level of consumption was considerably higher.
I have a psychiatrist’s report, or more than one, from Dr Jordan which states that the defendant suffers from low intellectual ability, personality dysfunction (mainly borderline but also antisocial characteristics), alcohol use disorder and may have, at least previously, suffered from post-traumatic stress disorder as a consequence of the sexual assault.
Although the latter is not considered to impact directly upon the present offending, Dr Jordan says that it is evident from her narrative and available documentation, that her existence since that sexual assault has become fragile and complicated. There was no evidence of oppositional disorder as a child and the significant amount of antisocial activity that has occurred in recent years can be characterised as within a fragile, flawed individual struggling to cope with various scenarios in a competent fashion. Alcohol use appears to be the tipping point on most occasions.
Dr Jordan notes that the defendant’s extended placement in custody, although at one level preventing further assaults in the community, is not considered appropriate for a traumatised female with an intellectual disability. A generation or two previously he says, the defendant would have been provided with a long-term hospital admission, at least in some jurisdictions, in an attempt to bring about a more rigorous approach to rehabilitation; this option no longer exists locally. It is accepted that community-based rehabilitation is now the preferred, and only, option.
The defendant has been a recipient of a Disability Support Pension and also benefits from the financial and other forms of support as a consequence of the National Disability Insurance Scheme (NDIS). Part of that support includes regular access to an alcohol and drug counsellor.
Dr Jordan says that it would appear that the current NDIS plan has merit, but particular efforts must be made by those supporting the defendant in the community to provide an environment where alcohol is not readily accessed and some scrutiny over her social group is actioned. If that can be achieved, there remains optimism that her longer-term recidivism rate can be reduced. Periods in custody, per se, he says are unlikely to achieve that.
The defendant is convicted of each of the charges to which she has pleaded guilty. I impose a single sentence of 15 months’ imprisonment backdated to 4 July 2021, the balance of which sentence from today I wholly suspend on condition that the defendant commit no offence punishable by imprisonment for a period of two years.
I make a community correction order with an operational period of 12 months. The order will contain all of the core conditions to which I add the following special conditions:
(a) the defendant must, during the operational period of the order, attend educational and other programs as directed by the court or a probation officer;
(b) the defendant must, during the operational period of the order, submit to the supervision of a probation officer as required by the probation officer;
(c) the defendant must, during the operational period of the order, undergo assessment and treatment for alcohol dependency as directed by a probation officer;
(d) the defendant must, during the operational period of the order, submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer;
(e) the defendant must not, during the operational period of the order, be present at a place, or places, specified by a probation officer;
(f) the defendant must not, during the operational period of the order, in any way, directly or indirectly, communicate with, or be in the presence of, a person, or a member of a class of persons, specified by a probation officer;
(g) the defendant must take all reasonable steps to re-engage with the National Disability Insurance Scheme and avail herself of the support available to her including regular contact with an alcohol and drug counsellor.
Ms Kelty this is an opportunity for you to break this terrible cycle that you have fallen into of drinking and violent offending and then ending up back in gaol again. The long and the short of it is that this is probably your last chance because the courts have run out of alternatives. What is going to happen in future is, you are just going to be kept in gaol for longer and longer periods to stop you from drinking and stop you from getting into trouble. That does not seem right to me. What I ask is that you give it your absolute best shot, alright?
I also direct that Ms Kelty attend at Highfield House today before 5pm to let them know the order I have made.