Terence Darrell Kelly has appealed his sentence for kidnapping four-year-old Cleo Smith from her family’s tent at a remote Western Australian campsite, arguing the sentencing judge failed to give due weight to his turbulent upbringing.
Documents lodged at Western Australia’s court of appeal this week also state that a district court chief judge, Julie Wager, erred in finding that Kelly was significantly affected by methamphetamine when he abducted Smith in October 2021.
Kelly admitted in January last year to snatching Cleo as she slept near her parents at a campsite on the state’s midwest coast. In April he was sentenced to 13 years and six months in jail, and was told he would have to spend at least 11 years and six months in prison before he is eligible for parole.
On Monday, Kelly’s lawyer, Kate Turtley-Chappel, appealed the jail term on several grounds, including that his moral culpability for the kidnapping is reduced by his mental impairment.
Details of how Cleo spent 18 days held captive near her family home in Carnarvon and of Kelly’s deprived childhood were revealed during the April sentencing in the WA district court.
At age two, Kelly was found with alcohol in his baby bottle, suffering from hearing loss and was removed from alcoholic, drug-addicted parents. He was exposed to violence and substance abuse before turning to drugs himself.
The appeal documents say the judge “failed to give appropriate weight to the applicant’s childhood disadvantage and trauma”.
The documents also state that the judge erred in finding Kelly was “as a matter of fact, significantly affected by methylamphetamine at the time of the offending”.
In April, the court heard that Kelly is emotionally unstable and delusional, and living in a fantasy world to escape the isolation, depression and complex post-traumatic stress disorder he suffers from extreme childhood neglect.
Kelly received a five-year, or 25%, sentence reduction from the maximum 20-year penalty for child stealing because of his early guilty plea.
Yanina Boschini, administrator for the state’s director of public prosecutions, said the prosecuting authority will not be lodging an appeal against the sentence.
“The [DPP] has formed the view that appealing the length of sentence imposed would not be successful as the sentence is not manifestly inadequate.”
University of Newcastle criminologist and associate professor, Xanthe Mallett, said that sentencing was a highly involved and complex process and in her opinion the sentencing was fair and balanced.
“Sentencing judges must take emotion out of their deliberations, and while they consider aggravating factors, they will also consider mitigating ones,” Mallett says.
“I saw the details of the mitigating factors, and while there is never any excuse for someone to abduct and hold a child for 18 days, there is no denying that Kelly’s upbringing was truly awful and he has many mental health conditions and other complications that help explain why he did not receive the maximum sentence available.”
Kelly has been diagnosed as a paranoid schizoid with “significant” borderline and narcissistic traits, complex post-traumatic stress disorder, depression, anxiety, and possibly foetal alcohol syndrome.
He is kept in a special part of the jail, where at-risk offenders and former police officers are housed for their own protection.
