Elphick v The Queen

The Supreme Court of the Australian Capital Territory, constituted by Elkaim ACJ, Loukas-Karlsson and Banks-Smith JJ, heard an appeal by Kieran William Elphick against a sentence imposed by the ACT Supreme Court. The appellant was sentenced by Murrell CJ on 4 February 2021 to a total of seven years and seven months’ imprisonment, with a non-parole period of four years, for 100 offences committed over two distinct periods in late 2018/early 2019 and late 2019/early 2020. These offences included aggravated burglary, burglary, taking motor vehicles without consent, obtaining property by deception, theft, damaging property, driving while disqualified, and possessing deceptive documents.

The primary legal issue before the Court of Appeal was whether the sentence imposed by the Chief Justice was manifestly excessive, particularly in light of the appellant's submission that time spent in custody prior to sentencing had not been adequately taken into account. The appellant, who represented himself, contended that his legal representatives had assured him this pre-sentence custody would be considered, but it had not been reflected in the final sentence.

The Court of Appeal examined the sentencing remarks of Murrell CJ, who had considered the objective seriousness of the numerous and varied offences, the appellant's youth, his extensive criminal history for similar offences, and significant subjective factors. These subjective factors included the appellant's Indigenous heritage, a head injury sustained in a motor vehicle accident leading to cognitive impairments, and a complex mental health picture involving ADHD, Stimulant Use Disorder, and psychotic symptoms exacerbated by heavy drug use. The Chief Justice had accepted that these issues, along with a deprived background and childhood disadvantage, significantly lessened the appellant's moral culpability. Despite acknowledging limited prospects of rehabilitation, the Chief Justice set a relatively short non-parole period, leaving the ultimate decision on release to the parole authority. The Court noted that the appellant had previously been sentenced by Magistrate Taylor on 16 October 2019 for earlier offences, at which time he had spent nine months in custody, and a Good Behaviour Order was imposed with a condition to attend a rehabilitation program.

The Court of Appeal found that the Chief Justice had properly considered all relevant factors, including the appellant's submissions regarding pre-sentence custody, and had applied appropriate sentencing principles. The appeal was dismissed.