3. The sentences be directed to commence on 10 November 2015.
4. The non-parole period be directed to commence on 11 June 2014 and end on 24 November 2015.
5. The sentence is suspended on 24 November 2015 and Ian William Kelly is required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 9 months with a probation condition that he be under the supervision of the Director-General or her delegate for 9 months and that he obey all reasonable directions of the person supervising him as to where he lives and any vocational, psychological, mental health or other courses and treatment or counselling, especially as to drug and alcohol use, which the person supervising him may consider desirable or necessary for him to undertake or undergo.
6. Otherwise the appeal is dismissed and the sentences, including the orders for disqualification be confirmed.
Catchwords:
APPEAL – Jurisdiction, practice and procedure – appeal from Magistrates Court – appeal against sentence – manifestly excessive – totality – accumulation – appearance of double punishment – concurrency – discretion to backdate sentence – calculation of non-parole period – end date of non-parole period – stay of sentence pending appeal
CRIMINAL LAW – Jurisdiction, practice and procedure – dishonestly driving someone else’s motor vehicle without consent – driving whilst disqualified – repeat offender – failing to stop when signalled by a police officer – driving at a speed dangerous – extensive criminal history – health problems – history of breaching court orders and recognizances – breach of parole
[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.
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Details
AGLC
Kelly v Ashby [2015] ACTSC 346
Case
[2015] ACTSC 346
Decision Date
CaseChat Overview and Summary
Kelly, the appellant, appealed against his conviction and sentence in the Magistrates Court of the ACT. The respondent, Ashby, was the Director-General of the Department of Justice and Community Safety, representing the ACT Government. The appellant contested his conviction and sentence for driving a motor vehicle whilst disqualified and driving without consent, in addition to other charges. The appeal focused on the sentence imposed, arguing it was manifestly excessive and that the calculation of the non-parole period was incorrect.
The court was required to determine whether the sentence imposed by the Magistrates Court was manifestly excessive and whether the non-parole period was accurately calculated. The appellant argued that the sentence was excessive due to the accumulation of charges, which gave the appearance of double punishment. The court considered the totality principle, ensuring the sentence reflected the accumulation of offences without being disproportionately severe. Additionally, the court examined the discretion to backdate the sentence and the correct calculation of the non-parole period, including its end date.
The court found that while the appellant's criminal history was extensive, and his breaches of court orders were significant, the sentence was not manifestly excessive. However, the court noted discrepancies in the calculation of the non-parole period. The appeal was upheld in part, and the sentence was directed to commence on 10 November 2015. The non-parole period was adjusted to commence on 11 June 2014 and end on 24 November 2015. The sentence was suspended on this date, requiring the appellant to comply with good behaviour obligations and be under supervision for nine months. The court dismissed the appeal in all other respects, confirming the convictions and sentences imposed by the Magistrates Court.
Orders
Orders of the court
1. The appeal be upheld in part.
2. The convictions be confirmed
3. The sentences be directed to commence on 10 November 2015.
4. The non-parole period be directed to commence on 11 June 2014 and end on 24 November 2015.
5. The sentence is suspended on 24 November 2015 and Ian William Kelly is required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 9 months with a probation condition that he be under the supervision of the Director-General or her delegate for 9 months and that he obey all reasonable directions of the person supervising him as to where he lives and any vocational, psychological, mental health or other courses and treatment or counselling, especially as to drug and alcohol use, which the person supervising him may consider desirable or necessary for him to undertake or undergo.
6. Otherwise the appeal is dismissed and the sentences, including the orders for disqualification be confirmed.