Kelly v R

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.