and Mark Kelynack v The Queen - [2013] VSCA 303

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0162
MARK KELYNACK	Appellant
v
THE QUEEN	Respondent

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JUDGES	NEAVE, REDLICH and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	19 September 2013
DATE OF JUDGMENT	24 October 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 303
JUDGMENT APPEALED FROM	DPP v Kelynack (Unreported, County Court of Victoria, Judge Pullen, 27 and 30 July 2012).

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CRIMINAL LAW – Application to extend time to seek leave to appeal against conviction – Aiding and abetting – Application refused.

CRIMINAL LAW – Appeal against sentence – One charge of aggravated burglary, one charge of intentionally causing injury and one charge of theft – Sentence of five years and six months’ imprisonment with a non-parole period of three years and six months imposed below – Co-offender sentenced by the same judge to two years and six months’ imprisonment with a non-parole period of one year and six months – Parity principle – Difference of three years in the total effective sentences likely to give rise to a justified sense of grievance on behalf of the appellant – Appeal allowed – Appellant resentenced to four years and one month’s imprisonment with a non-parole period of two years and four months’ imprisonment.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Ann Valos Criminal Law
For the Respondent	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

Background

On 27 July 2012 the appellant, Mark Aaron Kelynack, was found guilty by a County Court jury of aggravated burglary, intentionally causing injury and theft.[1] The learned sentencing judge imposed the sentences and made the orders set out below.
[1]DPP (Vic) v Kelynack (County Court of Victoria, Judge Pullen, 27 and 30 July 2012) (‘Reasons’).

charge on indictment[2] offence maximum sentence cumulation

1 Aggravated burglary
Crimes Act1958 s 77 25 years 4 years, 6 months Base

2 Intentionally cause injury
Crimes Act1958 s 18 10 years 18 months 9 months

4 Theft
Crimes Act1958 s 74 10 years 6 months 3 months

Total Effective Sentence: 5 years, 6 months’ imprisonment

Non-Parole Period: 3 years, 6 months’ imprisonment

Pre-sentence Detention Declared: 31 days

Other orders:

All Victorian licences and/or permits held by the appellant be cancelled and that the offender be disqualified from obtaining any such licence for a period of 12 months from 27 July 2012.[3]

Forensic sample order pursuant to s 464ZF(2) Crimes Act 1958.

Pursuant to s 48M of the Sentencing Act1991 the Community Correction Order imposed by the County Court on 19 March 2012, was cancelled and the appellant was resentenced to three and a half months’ imprisonment to be served concurrently with the sentences above.
[2]Charge 3, recklessly causing injury, was led as an alternative to charge 2.
[3]This particular order was actually made on 30 July 2012 by the sentencing judge, Judge Pullen, relying on the slip rule that allows an order to be amended within 14 days .

The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading and Mark Kelynack v The Queen

Details

AGLC: Kelynack v The Queen [2013] VSCA 303
Case: [2013] VSCA 303
Decision Date: 24 October 2013

CaseChat Overview and Summary

In the matter of Mark Kelynack, the appellant, and The Queen, the respondent, the appellant sought an extension of time to seek leave to appeal against his conviction and sentence. The appellant was convicted of aiding and abetting in an aggravated burglary, intentionally causing injury, and theft. The Supreme Court of Victoria was tasked with determining whether to grant the appellant an extension to seek leave to appeal and, if so, the grounds upon which leave to appeal should be granted.

The primary legal issues before the court were whether the appellant's application for an extension of time to seek leave to appeal against his conviction and sentence should be granted, and whether there were grounds for leave to appeal. Additionally, the court needed to consider the principle of parity in sentencing and whether the disparity in the sentences imposed on the appellant and his co-offender warranted an appeal against the appellant's sentence.

The court found that while the appellant had provided a plausible explanation for the delay in seeking leave to appeal, the explanation was not sufficient to justify an extension of time. The court further determined that there were no grounds for leave to appeal regarding the conviction. However, the court identified a significant disparity in the sentences imposed on the appellant and his co-offender, who was sentenced to a much lesser term. The difference of three years in the total effective sentences was likely to give rise to a justified sense of grievance on behalf of the appellant. Consequently, the court allowed the appeal against the sentence, finding that the disparity warranted resentencing. The appellant was resentenced to four years and one month's imprisonment with a non-parole period of two years and four months' imprisonment.

Orders