Kells v Police

The appeal against sentence was heard in the South Australian Court of Appeal. The appellant, who had pleaded guilty to multiple counts of non-aggravated serious criminal trespass and theft, was challenging the severity of the sentence imposed by the sentencing magistrate. The appellant argued that the notional head sentence of 40 months imprisonment was manifestly excessive and that he should have been given credit for the time he spent on home detention bail. The court had to decide if the starting point of 40 months imprisonment was appropriate and whether the decision to not give credit for time spent on home detention bail was correct.

The court considered the arguments made by the appellant regarding the notional head sentence of 40 months imprisonment. The court found that the starting point was within the magistrate’s discretionary range and was correct in principle. The court referred to previous cases where Doyle CJ had indicated that a sentence of two years imprisonment after allowing for pleas of guilty was the least that could properly be imposed for this type of offence. Given the appellant's three distinct occasions of offending, some element of planning, and the theft of a significant amount of property, the court found that the head sentence was well within the appropriate range. The court also considered the issue of credit for time spent on home detention bail, noting that the decision to give such credit was discretionary and found no error in the magistrate's decision not to give credit for time spent on home detention bail.

The appeal was dismissed. The court upheld the sentencing magistrate's decision, finding that the starting point of 40 months imprisonment was appropriate and that there was no error in not giving credit for time spent on home detention bail. The decision of the sentencing magistrate was affirmed, and the appellant's appeal was dismissed.