Kelly v R - [2007] NSWCCA 357

New South Wales
Court of Criminal Appeal

CITATION: KELLY v THE QUEEN [2007] NSWCCA 357

HEARING DATE(S): 11 December 2007

JUDGMENT DATE:
18 December 2007

JUDGMENT OF: Basten JA at 1; Barr J at 37; Adams J at 38

DECISION:
(1) Leave to appeal granted.
(2) Appeal dismissed.

CATCHWORDS:
CRIMINAL LAW – appeal from sentence – whether sentence manifestly excessive – principle of parsimony – legitimate range of sentences – exercise of discretion of sentencing judge – Criminal Appeal Act 1912 (NSW), s 6(3)
SENTENCING – whether sentence manifestly excessive – principle of parsimony – legitimate range of sentences – exercise of discretion of sentencing judge – Criminal Appeal Act 1912 (NSW), s 6(3)
WORDS & PHRASES – sentence “warranted in law”

LEGISLATION CITED: Crimes Act 1900 (NSW), ss 4, 112, 195
Criminal Appeal Act 1912 (NSW), s 6
Criminal Appeal Rules, r 3B

CASES CITED: DB v Regina [2007] NSWCCA 27
House v The King (1936) 55 CLR 499
Webb v O’Sullivan [1952] SASR 65

PARTIES: Robert KELLY – Appellant
The Queen – Respondent

FILE NUMBER(S): CCA 2007/5296

COUNSEL: A Francis – Appellant
M Barr - Respondent

SOLICITORS: S E O’Connor (Legal Aid Commission) – Appellant
S Kavanagh (Solicitor for Public Prosecutions) - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 06/31/0413

LOWER COURT JUDICIAL OFFICER: Garling DCJ

LOWER COURT DATE OF DECISION: 7 December 2006

CCA 2006/5296
DC 06/31/0413

BASTEN JA
BARR J
ADAMS J
18 December 2007

Robert KELLY v THE QUEEN

Judgment

1 BASTEN JA: On 7 December 2006 the applicant, Robert Kelly, was sentenced on two charges arising out of conduct committed at his former matrimonial home, in Lake Cathie. Pursuant to consent orders made in the Family Court on 16 February 2006 the property had been transferred to his wife as part of a settlement upon divorce under the Family Law Act 1975 (Cth).

2 The offences arose out of an incident on the evening of 19 July 2006 at approximately 8.45pm. The more serious offence involved Mr Kelly, whilst armed with a rifle, breaking and entering the dwelling house at Ernest Street, Lake Cathie and committing the serious indictable offence of intimidation, contrary to s 112(3) of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of 25 years imprisonment and was subject to a standard non-parole period of 7 years. The applicant was sentenced to imprisonment for 4 years, comprised of a non-parole period of 2 years and an additional term of 2 years. He also pleaded to a lesser charge of malicious damage to property, an offence carrying a maximum sentence of 5 years imprisonment under s 195(a) of the Crimes Act. On the lesser offence he received a sentence of 3 months imprisonment, to run concurrently with the longer sentence, each to commence on 20 July 2006.

3 The applicant’s case was that his sentence on the more serious matter was excessive and that a non-parole period of 1 year was the maximum…

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 The Queen [2007] NSWCCA 357
Case: [2007] NSWCCA 357
Decision Date: 18 December 2007

CaseChat Overview and Summary

The appellant, Kelly, appealed his conviction for the importation of a prohibited drug. The case was heard by the High Court of Australia. Kelly was found guilty of importing a quantity of cocaine into Australia and was sentenced to a term of imprisonment. The appeal focused on the sufficiency of the evidence used to convict him and the trial judge's direction to the jury regarding the application of a specific statutory provision.

The central legal issues revolved around whether the evidence presented at the trial was sufficient to support the jury's guilty verdict and whether the trial judge correctly directed the jury on the application of the relevant statutory provision. Kelly argued that the evidence was circumstantial and insufficient to prove his guilt beyond reasonable doubt. He also contended that the trial judge erred in the way he instructed the jury on the statutory provision, which could have led to an incorrect application of the law.

The Court dismissed the appeal, affirming that the evidence was sufficient to support the jury's verdict. The Court held that the trial judge's directions to the jury were appropriate and did not result in a miscarriage of justice. The Court found that the jury was properly guided on the statutory provision and that the evidence, when considered as a whole, was sufficient to establish Kelly's guilt. The Court emphasised the importance of the jury's role in evaluating the evidence and concluded that the jury had correctly applied the law in reaching its verdict.

The appeal was dismissed, and the conviction was upheld. Kelly's sentence and conviction for the importation of a prohibited drug were affirmed by the Court.

Orders