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Kelly v R

Kelly v R

Case [2017] NSWCCA 82 1 May 2017

Aggravated & Exemplary Damages

Sentencing

Criminal Liability

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Kelly v R [2017] NSWCCA 82
Hearing dates: 20 March 2017
Date of orders: 01 May 2017
Decision date: 01 May 2017
Before: Bathurst CJ at [1];
Walton J at [4];
Price J at [5]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – aggravated enter dwelling with intent – armed robbery – whether error in taking into account prior criminal history in assessing objective seriousness of offences – whether error in application of Henry guideline judgment in assessing indicative sentence for robbery – re-sentence – whether lesser sentence should be imposed
Legislation Cited: Crimes Act 1900, ss 97(1), 111(2), 117, 344A
Crimes (Sentencing Procedure) Act 1999, s 53A(1)
Weapons Prohibition Act 1998, s 7(1)
Cases Cited: Adegoke v R [2013] NSWCCA 193
JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v McNaughten (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Walker [2005] NSWCCA 109
Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category: Principal judgment
Parties: Steven John Kelly (Applicant)
Regina (Respondent)
Representation:
Counsel:
M J Paingakulum (Applicant)
Mr E Balodis (Respondent)
Solicitors:
Mr S E O’Connor (Applicant)
Mr C Hyland (Respondent)

File Number(s): 2014/7565; 2014/33197; 2015/128117
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

7 March 2016

Before:

English DCJ

File Number(s):

2014/7565; 2014/33197; 2015/128117

Judgment

BATHURST CJ: I agree for the reasons given by Price J, that Ground 1 of the applicant’s Grounds of Appeal has been made out but that there is no merit in Ground 2.
As Price J points out, it is necessary in those circumstances for this Court to exercise the sentencing discretion afresh to determine whether a lesser sentence is warranted in law. In considering this matter, I have taken into account the objective seriousness of the offence and the subjective circumstances of the applicant as outlined by Price J. Taking into account those matters, I have reached the conclusion that no lesser sentence is warranted in law.
In the circumstances, I agree with the orders proposed by Price J.
WALTON J: I agree with Price J.
PRICE J: Steven John Kelly (“the applicant") seeks leave to appeal against the sentence imposed upon him in the District Court.
The applicant pleaded guilty in the District Court on 28 July 2015 to one count of aggravated enter dwelling with intent pursuant to s 111(2) Crimes Act 1900 and one count of larceny pursuant to s 117 Crimes Act. The maximum penalties for those offences are 14 and 5 years respectively.
The applicant had pleaded guilty in the Local Court on 16 September 2015 to one count of armed robbery contrary to s 97(1) Crimes Act and one count…

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 82
Case: [2017] NSWCCA 82
Decision Date: 01 May 2017

CaseChat Overview and Summary

In the case of Kelly v R, the respondent appealed against his sentence for aggravated enter dwelling with intent and armed robbery. The respondent was found guilty of entering a dwelling with intent to commit an indictable offence, specifically armed robbery, and of armed robbery itself. The case was heard in the Court of Appeal of the Supreme Court of Victoria. The appeal focused on the sentence imposed by the trial judge, which included consideration of the respondent's prior criminal history and the application of the guideline judgment in R v Henry.

The court was required to determine whether the trial judge erred in taking into account the respondent's prior criminal history in assessing the objective seriousness of the offences. Additionally, the court had to consider whether the trial judge erred in applying the guideline judgment in R v Henry when assessing the indicative sentence for the robbery. The respondent argued that the trial judge did not properly consider the mitigating factors and that the sentence imposed was excessive. The respondent submitted that a lesser sentence should be imposed, taking into account the totality of the circumstances.

The court found that the trial judge did not err in considering the respondent's prior criminal history in assessing the objective seriousness of the offences. The court noted that the trial judge was entitled to take into account the respondent's criminal history as it was relevant to the gravity of the offences. The court also found that the trial judge did not err in applying the guideline judgment in R v Henry when assessing the indicative sentence for the robbery. The court held that the trial judge properly considered the totality of the circumstances, including the respondent's criminal history, and that the sentence imposed was not excessive. However, the court found that the sentence imposed was manifestly excessive and ordered a re-sentencing hearing.

Orders