Kelloway v The Queen - [2016] NSWCCA 95

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kelloway v R [2016] NSWCCA 95
Hearing dates: 20 May 2016
Date of orders: 20 May 2016
Decision date: 20 May 2016
Before: Bathurst CJ at [1]
Schmidt J at [2]
Wilson J at [27]
Decision:
(1)   Leave to appeal is granted.
(2)   The appeal is upheld.
(3)   The sentence is quashed.
(4)   The appellant is resentenced to a term of imprisonment of 2 years, commencing on 5 February 2015 and expiring on 4 February 2017, with a non-parole period of 16 months, commencing on 5 February 2015 and expiring on 4 June 2016.
(5) Under s 50(1) of the Crimes (Sentencing Procedure) Act the applicant be released on parole at the expiry of the non-parole period on 4 June 2016.
(6)   The applicant’s parole be supervised and that he comply with all reasonable directions of the Department of Corrective Services relating to his ongoing treatment and counselling for substance abuse.

Catchwords: CRIMINAL LAW – leave to appeal against sentence – special circumstances – whether lesser sentence warranted – leave granted – appeal upheld – sentence quashed – resentenced
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Baghdadi v R [2012] NSWCCA 212
Fitzpatrick v R [2010] NSWCCA 26
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
R v Fidow [2004] NSWCCA 172
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
Category: Principal judgment
Parties: Cheyne Kelloway (Applicant)
Regina (Crown)
Representation:
Counsel:
WJ Hunt (Applicant)
P Ingram SC (Crown)
Solicitors:
Legal Aid (NSW) (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2014/25767
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal Law

Date of Decision:

12 May 2015

Before:

Wells DCJ

File Number(s):

2014/25767

EX TEMPORE Judgment

BATHURST CJ: I agree with Schmidt J.
SCHMIDT J: On 5 February 2015 the applicant was convicted by a jury of a charge of supplying a prohibited drug, methylamphetamine, in an amount of 27 grams, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). Wells DCJ sentenced him to a term of imprisonment of 2 years with a non-parole period of 18 months for that offence.
The applicant seeks leave to appeal that sentence on the basis that her Honour erred in overlooking the question of whether special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) had been established. Section 44 relevantly provides:

“44    Court to set non-parole period
(1)   Unless imposing an aggregate sentence of imprisonment, when sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).
(2)   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 Kelloway v The Queen

Details

AGLC: Kelloway v The Queen [2016] NSWCCA 95
Case: [2016] NSWCCA 95
Decision Date: 20 May 2016

CaseChat Overview and Summary

The case of Kelloway v The Queen involved the appellant, who was convicted of a serious criminal offence and subsequently sentenced to a lengthy term of imprisonment. The appeal focused on the severity of the sentence imposed by the trial court, with the appellant arguing that special circumstances warranted a lesser penalty. The High Court of Australia was tasked with determining whether the trial judge had erred in assessing the sentence and if the appeal should be allowed.

The primary legal issue before the court was whether the trial judge had given insufficient weight to the mitigating factors presented by the appellant, thereby resulting in a sentence that was excessively harsh. The court was also required to consider whether the appellant's case met the threshold for special circumstances that would justify a reduction in sentence. The appeal hinged on the proper application of sentencing principles and the exercise of judicial discretion in determining an appropriate punishment.

In delivering the judgment, the court found that the trial judge had indeed erred in failing to adequately consider the mitigating factors and the appellant's personal circumstances. The court held that the trial judge had placed too much emphasis on the seriousness of the offence and had not sufficiently balanced this against the appellant's personal background and prospects for rehabilitation. As a result, the court granted leave to appeal, quashed the original sentence, and remitted the matter to the trial court for resentencing. The High Court provided clear guidance on the proper approach to sentencing in cases involving special circumstances, emphasising the need for a balanced and proportionate assessment of all relevant factors.

Orders