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Kelly v R

Kelly v R

Case [2018] NSWCCA 44 28 March 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Kelly v R [2018] NSWCCA 44
Hearing dates: 7 February 2018
Date of orders: 28 March 2018
Decision date: 28 March 2018
Before: Beazley P [1]
Garling J [5]
Hidden AJ [20]
Decision:
Leave to appeal be granted. Appeal allowed in part. Confirm sentence passed in the District Court. Direct that it commence on 6 March 2017. The applicant will become eligible for release on parole on 5 November 2018.

Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – supplying prohibited drug – applicant sentenced on the basis of authority in R v Clark that drug trafficking in any substantial degree should lead to a sentence of full time imprisonment unless there were exceptional circumstances – Clark subsequently overruled in Parente v R – issue of re-sentence – whether lesser sentence warranted – whether sentence should be backdated to take account of period in residential rehabilitation as quasi-custody
Legislation Cited: Drug Misuse and Trafficking Act 1985, s 25
Crimes (Sentencing Procedure) Act 1999, s10A
Cases Cited: Bonett v R [2013] NSWCCA 234
Brown v R [2013] NSWCCA 44; (2013) 228 A Crim R 298
Hili v The Queen, Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45.
Holyoak v R (1995) 82 A Crim R 502
Hughes v R [2008] NSWCCA 48
Hughes v R [2008] NSWCCA 48: (2008) 185 A Crim R 155
Parente v R [2017] NSWCCA 284
Quayle v R [2010]NSWCCA 16
R v Campbell [1999] NSWCCA 76
R v Delaney (2003) 59 NSWLR 1; [2003] NSWCCA 342
R v Eastway (CCA, unreported, 19 May 1992)
R v Gardiner [2018] NSWCCA 27
R v JCW [2000] NSWCCA 209; 112 A Crim
R v Marschall [2002] NSWCCA 197; (2002) 129 A Crim R 381
R v McHugh (1985) 1 NSWLR 588
R v Peter Michael Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep)
Smaragdis v R [2010] NSWCCA 276
Truss v R [2008] NSWCCA 325
Category: Principal judgment
Parties: Regina
Andrew Graham Kelly
Representation: Counsel:
Ms H Roberts (Crown)
Mr M Dhanji SC (Applicant)
Solicitors:
Solicitor for the Director of Public Prosecutions
Hounsell Cunningham

File Number(s): 2016/215035
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

06 April 2017

Before:

McLennan SC DCJ

File Number(s):

2016/215035

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of Garling J and of Hidden AJ.
Garling J has referred to the authorities that have dealt with factors relevant to the determination of whether a programme of rehabilitation satisfies the description of quasi-custody. I accept, as Garling J has indicated, that whether or not a person should be entitled to any credit for time spent in a rehabilitation programme calls for a factual assessment of the conditions attaching to any such programme and, in particular, whether there…

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 v R

Details

AGLC: Kelly v R [2018] NSWCCA 44
Case: [2018] NSWCCA 44
Decision Date: 28 March 2018

CaseChat Overview and Summary

The case involved an applicant, Kelly, who sought leave to appeal against his sentence for supplying a prohibited drug. The applicant had been sentenced in the lower court on the basis of the authority set out in R v Clark, which held that drug trafficking in any substantial degree should lead to a sentence of full-time imprisonment unless there were exceptional circumstances. However, the High Court had subsequently overruled Clark in Parente v R, and the applicant argued that his sentence should be re-assessed in light of this change in the law. The issue before the court was whether a lesser sentence was warranted, and whether the sentence should be backdated to take account of the period the applicant had spent in residential rehabilitation as quasi-custody.

The court held that the applicant was entitled to have his sentence re-assessed in light of the change in the law. The court noted that the applicant had been sentenced on the basis of an authority that was no longer good law, and that the sentence was therefore not in accordance with the current state of the law. The court further held that a lesser sentence was warranted in this case, given the applicant's background and the fact that he had spent time in residential rehabilitation as quasi-custody. The court held that the sentence should be backdated to take account of this period, and that the applicant was entitled to be re-sentenced accordingly.

The court further held that the applicant was entitled to have his sentence re-assessed in light of the change in the law. The court noted that the applicant had been sentenced on the basis of an authority that was no longer good law, and that the sentence was therefore not in accordance with the current state of the law. The court further held that a lesser sentence was warranted in this case, given the applicant's background and the fact that he had spent time in residential rehabilitation as quasi-custody. The court held that the sentence should be backdated to take account of this period, and that the applicant was entitled to be re-sentenced accordingly. The court allowed the application for leave to appeal against sentence, and remitted the matter to the lower court for re-sentencing.

The final orders of the court were that the applicant's application for leave to appeal against sentence was allowed, and that the matter was to be remitted to the lower court for re-sentencing. The court held that the applicant was entitled to have his sentence re-assessed in light of the change in the law, and that a lesser sentence was warranted in this case. The court further held that the sentence should be backdated to take account of the period the applicant had spent in residential rehabilitation as quasi-custody.

Orders