Kelly (a Pseudonym) v The Queen - [2015] VSCA 340

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2015 0215

ERIC KELLY (a Pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 December 2015
DATE OF JUDGMENT:	9 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 340
JUDGMENT APPEALED FROM:	DPP v [Kelly] (Unreported, County Court of Victoria, Judge Sexton, 8 October 2015)

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CRIMINAL LAW – Sentence – Appeal – Applicant sentenced to aggregate sentence of six months’ imprisonment for two breaches of conditions of a supervision order under the Serious Sex Offenders (Detention and Supervision) Act 2009 – Prior breaches of supervision order – Sentence not manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms E Ramsay	Victorian Aboriginal Legal Service
For the Crown	Mr D Grace QC	Russell Kennedy

REDLICH JA
PRIEST JA:

Introduction

Probably as a result of foetal alcohol syndrome, the applicant — who is aged 31 years — has an intellectual disability, possessing a full scale IQ of 54. He is of Aboriginal descent, and grew up being subjected to parental drug and alcohol abuse, violence, estrangement from his parents and the death of many family members (including his father, who died when the applicant was 13).

On 8 October 2015, in the County Court, the applicant was sentenced to be imprisoned for an aggregate of six months for breaches of a supervision order. He seeks leave to appeal against that sentence. In our opinion, for the reasons that follow, the application should be refused.

The supervision order

The application arose from the following circumstances. In January 2006, when aged 21 years, the applicant committed a very serious rape. He broke into the home of a 25 year old woman who was eight and a half months’ pregnant, and by the use of force penetrated her vagina with his penis to the point of ejaculation.

Following a Crown appeal, in November 2009 the Court of Appeal substituted a total effective sentence of five years and six months’ imprisonment, with a non-parole period of four years, for a sentence of four years and six months’ imprisonment, with a non-parole period of two years and six months, imposed on the applicant in the County Court after he pleaded guilty to one count of rape and one count of aggravated burglary. The applicant was released on this sentence on 7 September 2013.

On an application by the Secretary to the Department of Justice,[2] in the County Court on 4 December 2013, the applicant was made subject to a supervision order (‘the order’) pursuant to the Serious Sex Offenders (Detention and Supervision) Act 2009 (‘the Act’). The order commenced on 4 December 2013, and was to remain in force for a period of five years.
[2]Now 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 Kelly (a Pseudonym) v The Queen

Details

AGLC: Kelly (a Pseudonym) v The Queen [2015] VSCA 340
Case: [2015] VSCA 340
Decision Date: 9 December 2015

CaseChat Overview and Summary

The case before the court was an appeal by Kelly, using a pseudonym, against a sentence imposed by the lower court. Kelly was sentenced to an aggregate of six months' imprisonment for two breaches of the conditions of a supervision order under the Serious Sex Offenders (Detention and Supervision) Act 2009. The breaches in question involved previous violations of the terms of the supervision order. The appeal sought to challenge the sentence on the grounds that it was manifestly excessive.

The central legal issue before the court was whether the sentence imposed was manifestly excessive in the circumstances. This required consideration of the nature and seriousness of the breaches, Kelly's criminal history, and the principles of sentencing as they apply to breaches of supervision orders. The court also needed to determine whether the sentence was appropriate in light of the objectives of the supervision order regime, which includes deterrence, rehabilitation, and public protection.

In evaluating the appeal, the court considered the nature of the breaches, Kelly's history of similar offences, and the need for the sentence to reflect the seriousness of the breaches while also being proportionate. The court found that the sentence was not manifestly excessive, taking into account the cumulative effect of the breaches and Kelly's criminal history. The appeal was dismissed, and leave to appeal was refused on the basis that the sentence was within the range of appropriate penalties for the breaches committed.

Orders