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Kells v The Queen

Kells v The Queen

Case [2013] VSCA 7 7 February 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0066
JADE MELISSA KELLS	Appellant
v
THE QUEEN	Respondent

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JUDGES	BUCHANAN and TATE JJA and T FORREST AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	11 September 2012
DATE OF JUDGMENT	7 February 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 7
JUDGMENT APPEALED FROM	[2012] VSC 53 (Macaulay J)

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CRIMINAL LAW – Appeal against sentence – Conviction for manslaughter – Sentenced to eight years’ imprisonment with a non-parole period of five years – Manifest excess – Whether sentencing judge gave insufficient weight to the mitigating factors or undue weight to the aggravating factors – Judge did not attribute inappropriate weight to factors – No ‘usual’ standard or normal non-parole period – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr C B Boyce	Galbally & O’Bryan
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

In my opinion, the appeal should be dismissed for the reasons stated by Tate JA.

TATE JA:

On 13 December 2011, the appellant, Jade Melissa Kells, was acquitted by a Supreme Court jury of one charge of murder, but found guilty of manslaughter. She had offered to plead guilty to manslaughter during the trial. She was sentenced to eight years’ imprisonment with a non-parole period of five years.[1] She appeals[2] on the ground that the head sentence imposed and the non-parole period are each manifestly excessive.
[1]The appellant was sentenced on 24 February 2012.
[2]Pursuant to leave granted by Harper JA on 25 June 2012.

The ground of manifest excess is difficult to satisfy. As this Court emphasised in Clarkson v The Queen,[3] the requirement imposed is a stringent one:[4]

[It] will only succeed if it can be shown that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender.

[3](2011) 212 A Crim R 72.

[4]Ibid [89].

Volatile relationship with the deceased

The death of Mr Dean Winston Pye was caused by the appellant stabbing him once in the chest during an argument about money and mobile phones that she claimed he had stolen from her.[5]

[5]I draw this summary of the events leading up to Mr Pye’s death largely from the sentencing remarks: R v Kells [2012] VSC 53 (‘Sentencing remarks’).

The appellant had been in a relationship with Mr Pye for approximately five months before his death on 26 January 2010. That relationship had been, at times, a fractious one, characterised by frequent arguments and mutual abuse. The appellant told the psychologist, Mr Newton, that they had ‘fought most days’ and that these fights regularly included physical violence. She told the police, in her record of interview, that they had each threatened to…

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 Kells v The Queen

Details

AGLC: Kells v The Queen [2013] VSCA 7
Case: [2013] VSCA 7
Decision Date: 7 February 2013

CaseChat Overview and Summary

The case of Kells v The Queen involved the appellant, who was convicted of manslaughter and sentenced to eight years' imprisonment with a non-parole period of five years. The appellant challenged the sentence, arguing that it was manifestly excessive. The central issue was whether the sentencing judge had given insufficient weight to the mitigating factors or undue weight to the aggravating factors. The appeal was heard by the High Court of Australia, which had to determine whether the sentence imposed was just and appropriate.

The High Court examined the sentencing principles and the judge's assessment of the circumstances surrounding the crime. It noted that while the sentence was on the higher end of the scale, it was not so severe as to be manifestly excessive. The court held that the sentencing judge had not erred in the way they balanced the mitigating and aggravating factors, and had appropriately considered the unique aspects of the case. There was no 'usual' standard or normal non-parole period for manslaughter cases that could be applied rigidly. Instead, each case must be assessed on its individual merits.

In conclusion, the High Court found that the sentence imposed was not manifestly excessive and that the sentencing judge had correctly applied the relevant principles. The appeal was dismissed, and the original sentence was upheld. The court emphasised the importance of individualised sentencing and the need for appellate courts to exercise restraint when reviewing sentences imposed by trial judges. The decision underscores the principle that sentencing is primarily a matter for the trial court, and appellate intervention should be reserved for cases where there has been a clear error of principle or a manifest excess.

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