Legal Research
Cases
Kelly v The King

Kelly v The King

Case [2023] NSWCCA 104 17 May 2023

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kelly v R [2023] NSWCCA 104
Hearing dates: 10 March 2023
Date of orders: 10 March 2023
Decision date: 17 May 2023
Before: Bell CJ at [1];
Walton J at [18];
Davies J at [130]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME – sentencing –– application for leave to appeal against sentence - single ground of manifest excess - multiple offences – consideration of patent errors where only ground of appeal manifest excess - whether specific patent errors constitute misapplications of sentencing principles – whether inconsistency in determining indicative sentences – range of objective seriousness – leniency for good character – totality – failure to demonstrate manifest excess - leave to appeal granted – appeal dismissed

Legislation Cited:
Crime (Sentencing Procedure) Act 1989 (NSW)
Crimes Act 1900 (NSW),
Criminal Appeal Act 1912 (NSW)

Cases Cited:
Adzioski v R [2013] NSWCCA 69
Aryal v R [2021] NSWCCA 2; Burke v R [2022] NSWCCA 6
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Burke v R [2022] NSWCCA 6
CMB v Attorney-General (NSW) (2015) 256 CLR 236; [2015] HCA 9
DH v R [2022] NSWCCA 2000
GG v R [2022] NSWCCA 102
Hayek v R [2016] NSWCCA 126
Higgins v R [2020] NSWCCA 169
House v King (1936) 55 CLR 499 at 504
Hughes v R [2018] NSWCCA 2
JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297
Markarian vThe Queen (2005) 228 CLR 357; [2005] HCA 25
Kerr v R (2016) 78 MVR 191; [2016] NSWCCA 218
Lees v R [2019] NSWCCA 65
McDowell v R [2018] NSWCCA 29
McLaren v R [2021] NSWCCA 12
McMahon v R [2011] NSWCCA 147
Mulato v R [2006] NSWCCA 282
Noonan v R [2021] NSWCCA 35
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Piscitelli v R [2013] NSWCCA 8
Pleasance v R [2016] NSWCCA 113
R v Brown [2012] NSWCCA 199
R v Clarke [2019] NSWDC 2
R v Curtis (No 3) [2016] NSWSC 866
R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370
R v Harris (2015) 70 MVR 412; [2015] NSWCCA 81
R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489
R v Hopkinson, R v Robertson [2022] NSWCCA 80
R v Mungomery [2004] NSWCCA 450
R v Smith (2000) 114 A Crim R 8; [2000] NSWCCA 140
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
Tassis v The Queen [2017] NSWCCA 143
Towney v R [2018] NSWCCA 65
Upadhyaya v R [2017] NSWCCA 162
Vale v R (2016) 77 MVR 194; [2016] NSWCCA 154

Category: Principal judgment
Parties: Scott Robert Kelly (Appellant)
Rex (Respondent)
Representation:
Counsel:
G Smith SC (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Ren Zhou Lawyers (Applicant)
Solicitor for Public Prosecutions…

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 The King

Details

AGLC: Kelly v The King [2023] NSWCCA 104
Case: [2023] NSWCCA 104
Decision Date: 17 May 2023

CaseChat Overview and Summary

In the High Court of Australia, Kelly appealed against his sentence imposed by the Court of Appeal of the Supreme Court of Victoria. The dispute concerned the severity of the sentence handed down for multiple offences, with Kelly arguing that the sentence was manifestly excessive. The primary legal issue was whether the sentencing judge made any patent errors in the application of sentencing principles, which rendered the sentence manifestly excessive. Another issue was whether there was an inconsistency in the determination of the indicative sentences, the range of objective seriousness, and the consideration of Kelly's good character and the principle of totality.

The court examined whether the identified errors in the sentencing process amounted to a misapplication of sentencing principles. The court found that there were patent errors in the assessment of the objective seriousness of the offences, the discount for good character, and the principle of totality. However, the court held that these errors did not constitute a misapplication of sentencing principles that would render the sentence manifestly excessive. The court also found no inconsistency in the determination of the indicative sentences and the range of objective seriousness. The court concluded that the sentence imposed was within the appropriate range, taking into account all relevant factors, and did not demonstrate a manifest excess. The court granted leave to appeal but dismissed the appeal on the basis that the sentence was not manifestly excessive.

Orders