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Kelly v R

Kelly v R

Case [2017] NSWCCA 256 27 October 2017

Sentencing

Judicial Review

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kelly v R [2017] NSWCCA 256
Hearing dates: 11 September 2017
Date of orders: 27 October 2017
Decision date: 27 October 2017
Before: Basten JA at [1];
Beech-Jones J at [2]
Fagan J at [46]
Decision:
Application for leave to appeal against sentence refused

Catchwords: SENTENCING – parity principle – one offender sentenced to 5 years and 11 months with non-parole period of three years and six months for attempted armed robbery – co-offender sentenced to aggregate sentence of nine years and six months with a non-parole period of just over 7 years for common offence and robbery and break and enter offences – applicant claimed a justifiable sense of grievance arising from co- offender’s sentence – contended that only small part of co-offender’s actual period in custody solely referable to common offence – consideration of Postiglione v The Queen (1997) 189 CLR 295 – comparison of actual periods in custody a matter to be taken into account but not determinative – comparison of all components of sentence including sentences being served for unrelated offences required – when criminality of two offenders for common and unrelated offending compared no justifiable sense of grievance arises – when applicant’s sentence for common offence compared to co-offender’s indicative sentence for common offence no justifiable sense of grievance
Legislation Cited: Crimes Act 1900, ss 97, 111, 117, 344A
Crimes (Sentencing Procedure) Act 1999, s 53A
Weapons Prohibition Act 1998, s 7
Cases Cited: Ayik v Regina [2013] NSWCCA 119
Bell v R [2008] NSWCCA 206
El-Helou v R [2014] NSWCCA 209
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Kelly v R [2017] NSWCCA 82
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
Tran v Regina [2006] NSWCCA 266
Texts Cited: D A Thomas, Principles of Sentencing, (2nd ed 1979, Heinemann) at 56-57
Category: Principal judgment
Parties: Jesse Aaron Kelly(Applicant)
Regina (Respondent)
Representation:
Counsel:
S Pararajasingham (Applicant)
B Baker (Respondent)
Solicitors:
Sydney Criminal Lawyers (Applicant)
Office of Director of Public Prosecutions (Respondent)

File Number(s): 2014/344806
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

23 September 2016

Before:

Pickering DCJ

File Number(s):

2014/344806

Judgment

BASTEN JA: I agree with Beech-Jones J and the additional observations of Fagan J.
BEECH-JONES J: This is an application for leave to appeal from a sentence imposed by his Honour Judge Pickering SC on 23 September 2016 for an offence of attempted armed robbery (Crimes Act 1900, ss 97(1) and 344A). The applicant was sentenced to a term of imprisonment of 5 years and 11 months with a non-parole period of 3 years and 6 months. The non-parole period commenced on 28 December 2014 and will expire on 27 June 2018. The balance of the sentence expires…

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 [2017] NSWCCA 256
Case: [2017] NSWCCA 256
Decision Date: 27 October 2017

CaseChat Overview and Summary

In the case of Kelly v The Queen, the applicant sought a reduction in his sentence for attempted armed robbery, claiming that there was a justifiable sense of grievance due to the disparity in the sentences handed down to him and his co-offender. The applicant was sentenced to five years and eleven months imprisonment, with a non-parole period of three years and six months. His co-offender, who was convicted of the common offence of attempted armed robbery as well as robbery and break and enter offences, was sentenced to an aggregate sentence of nine years and six months imprisonment, with a non-parole period of just over seven years. The applicant argued that the only small part of his co-offender's actual period in custody was solely referable to the common offence, and that this disparity warranted a reduction in his own sentence.
The legal issues in this case centred around the principle of parity in sentencing and the appropriate factors to be taken into account when comparing sentences. The applicant argued that the comparison of the actual periods in custody should be a key consideration, and that the disparity in the sentences was unjust. The court considered the relevant principles established in Postiglione v The Queen, and determined that while the comparison of actual periods in custody was a factor to be taken into account, it was not determinative. The court held that when comparing the criminality of the two offenders for both the common and unrelated offences, no justifiable sense of grievance arose. Additionally, when considering the applicant's sentence for the common offence compared to his co-offender's indicative sentence for the common offence, no justifiable sense of grievance was found.
The court rejected the applicant's argument that the comparison of the actual periods in custody should be the primary consideration in determining whether there was a justifiable sense of grievance. Instead, the court held that a comparison of all components of the sentence, including sentences being served for unrelated offences, was required. The court found that when the criminality of the two offenders for both the common and unrelated offences was compared, no justifiable sense of grievance arose. Furthermore, when the applicant's sentence for the common offence was compared to his co-offender's indicative sentence for the common offence, no justifiable sense of grievance was found. As a result, the applicant's application for a reduction in his sentence was dismissed.

Orders