Kelly, Glen William v The Queen

[1983] FCA 320

Re: GLEN WILLIAM KELLY
And: THE QUEEN
No. NTG 20 of 1983

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Woodward J.
Sheppard J.
Neaves J.

HEARING

DARWIN

#DATE 28:9:1983

ORDER

The appeal be dismissed.

JUDGE1

In this case, counsel appearing to assist the Court have said everything that could be said by way of challenge to the sentence that has been imposed. However, I find that the sentencing judge went to great pains to set out the various considerations which he took into account before passing sentence. There is nothing to suggest that he took into account any matters which he ought not to have, or failed to take into account any matters that he should have, and I am unable to see that there is any way in which it could be suggested that his Honour's discretion has miscarried.

The only point which counsel was able to draw attention to, which might, as he said, give him an opportunity to get his foot in the door, was his Honour's failure, when he came to deal with the question of a parole period, to make reference to the nature of the offence as well as the antecedents of the offender. However, it cannot be thought that his Honour was in any way unaware of the nature of the offence, because he had dealt with it carefully in other parts of his sentence. And I think it is clear that the relevant section of the Parole of Prisoners Act N.T. (1971-1982), s.4 sub-s. (3) requires that the nature of the offence and the antecedents of the offender be taken into account jointly. It is not necessary that two separate reasons should be found, one based on each factor, before a decision is reached not to fix a non-parole period.

If it were thought that there was any oversight by his Honour in not referring to the actual nature of the offence as well as the antecedents of the offender, and if I were, as a result, called upon to consider for myself his Honour's decision not to fix a non-parole period, I would in any event come to the same conclusion.

I think in particular that his Honour was correct in what he said about leaving to the New South Wales Courts what were to some extent the unknown quantities of any additional sentence that the accused may be called upon to serve, by reason of his escape from lawful custody, and the balance of the sentence from which he escaped, which he will now have to serve.

It seems clear from the New South Wales Parole of Prisoners Act (1966) - and I refer to section 4A - that if the normal course of events occurs and he is brought up for trial and sentence for his escape from legal custody, it will be open to the New South Wales Court dealing with that matter to set a non-parole period relative to the full term of the sentence then to be carried out in New South Wales. I would expect that the appellant or somebody on his behalf would draw to the attention of the New South Wales Court what his Honour has said on that matter in passing sentence.

But having read his Honour's reasons for sentence carefully, I have for my part come to the conclusion that his Honour's discretion did not miscarry in any way, and there are no grounds upon which this appellate court should interfere with the sentence imposed by his Honour.

JUDGE2

I agree, and I agree also with the reasons of the presiding judge. I would only add that, in relation to what his Honour said when refusing to specify a non-parole period, I would not take him simply by reason of the absence of words to that effect in the paragraph to have overlooked that he must take into account, in addition to antecedents, the nature of the offence. As has been said, there is too much earlier in what his Honour said in passing sentence to warrant the conclusion that he had failed to take that matter into account.

In relation to the time which the appellant still has to serve in New South Wales, his Honour was conscious of the need to have that in mind, as his reference to The Queen v Todd (1982) 2 NSWLR 517 indicates. I do not detect any error in what his Honour there did. Reliance was also placed upon disparity of sentences, reference being particularly made to the sentence of 5 years imposed in respect of the charge against Ostling. But it is clear from what is in the appeal book concerning that prisoner that the circumstances in relation to him were quite different from those in relation to the appellant.

As I say, I agree that the appeal should be dismissed.

JUDGE3

I agree with what has been said, and do not wish to add anything.